PLCCS 2007 Judgments - Pakistan Legal Archive

Courts in this Volume

Federal Service Tribunal
High Court Azad Kashmir
Karachi High Court Sindh
Lahore High Court Lahore
National Industrial Relations Commission
Northern Areas Chief Court
Peshawar High Court
Quetta High Court Balochistan
Service Tribunal Balochistan
Service Tribunal Nwfp
Service Tribunal Punjab
Service Tribunal Sindh
Sindh Subordinate Judiciary Service Tribunal
Supreme Court

Federal Service Tribunal

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 5 #

2007 P L C (C.S.) 5

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

NASIM ALI KHAN

Versus

DIRECTOR-GENERAL, INTELLIGENCE BUREAU, GOVERNMENT OF PAKISTAN, ISLAMABAD and another

Appeal No.197(K)CS of 2001, decided on 28th November, 2005.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 2(aa), 3 & 5---Government Servants (Appeal) Rules, 1977, R.5(3)---Service Tribunals Act (LXX of 1973), S.4---Compulsory retirement---Appeal---Appellant who was appointed as `ACIO' (BPS-11), was finally promoted as A.D.(BPS-18) and was re-designated as 'D.D.' (BPS-18)---Appellant in consequence of disciplinary proceedings against him was compulsorily retired from service vide Notification after issuing him show-cause notice and charge-sheeting him for allegations of misconduct, malpractice and corruption etc.---Order of compulsory retirement of appellant with retrospective effect was issued by the functionary as Authorized officer and Authority, whereas. competent Authority in case of appellant was Secretary Establishment Division---Said functionary being inferior in rank to Secretary Establishment Division, was not competent to initiate disciplinary proceedings and pass order of compulsory retirement against appellant---Entire disciplinary proceedings against appellant, in circumstances were ab initio void, nullity in the eyes of law, without lawful authority and were liable to be set aside on that ground---Penalty of compulsory retirement was imposed upon appellant retrospectively, which was a patent illegality on the part of Authority vitiating entire disciplinary proceedings against appellant, especially when authorities had not shown whether they were expressly empowered to pass impugned order retrospectively under some statute or Rules made thereunder---Disciplinary proceedings against appellant, in view of said serious illegality, could not be sustained---Service Tribunal without resorting to the discussion of merits of the case, set aside penalty of compulsory retirement imposed upon appellant and ordered his reinstatement in service from the date of his compulsory retirement.

2004 PLC (C.S.) 41; 1982 PLC (C.S.) 795; 1994 PLC (C.S.) 477; 1987 PLC (C.S.) 932; 2002 SCMR 433; 1987 PLC (C.S.) 658; 2000 PLC (C.S.) 1252; 1998 PLC (C.S.) 965; AIR 2000 SC 277; 2002 CLC 1584 (Kar.); 1995 SCMR 1249; PLJ 1990 Tr-C. (Services) 19; 1984 PLC (C.S.) 1614; 1991 SCMR 543; PLJ 2000 Tr-C. (Services) 241; PLJ 1973 Lah. 714; PLJ 1998 Kar. 180; 1992 MLD 318; 2004 PLC (C.S.) 495; Noor Muhammad v. The Member, Election Commission, Punjab and others 1985 SCMR 1178; The Vice-President (Admn.) National Bank of Pakistan and others v. Basharat Ali and others PLD 1979 Lah. 699 and Syed Sikandar Ali Shah v. Auditor-General of Pakistan and others 2002 PLC (C.S.) 1027 ref.

M.M. Tariq for Appellant.

Asif Hussain Mangi, Standing Counsel with Dr. Fazal Mithani, Sub-Inspector for Respondent.

Date of hearing: 7th October, 2005.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 43 #

2007 P L C (C.S.) 43

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashed Ali Mirza, Members

ISLAM AHMED KHAN and another

Versus

PAKISTAN RAILWAYS and others

Appeal No.1834(K)(SC) of 1998, decided on 20th July, 2006.

Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal to Service Tribunal---Maintainability of---Show-cause notice was issued to appellant and he was charge-sheeted for certain allegations of misappropriation and mismanagement---Departmental inquiry was conducted against him, but no further action was taken against him---As no action had been taken against appellant pursuant to show-cause notice/charge-sheet or letter of explanation, appeal filed by appellant, was not maintainable---Disciplinary proceedings could not be stifled before conclusion thereof.

Muhammad Yar Buttar and 4 others v. Board of Governors Overseas Pakistan Foundation, Islamabad 1999 SCMR 819 and 2005 PLC (C.S.) 116 rel.

Ch. Rasheed Ahmed for Respondents.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 71 #

2007 PLC (C.S.) 71

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

AFTAB AHMED SOOMRO

Versus

SECRETARY TO GOVERNMENT OF PAKISTAN, MINISTRY OF PRODUCTION AND INDUSTRIES, ISLAMABAD, and others

Appeal No.974(K)(C)(E) of 2002, decided on 17th June, 2005.

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4(1)(b)(i), 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Demotion---Appeal---Appellant serving as Deputy General Manager in Pakistan Steel who was Incharge of Development Cell was demoted after charge-sheeting him and holding enquiry against him on allegation that he failed to arrange payment of Electric bills in respect of two schools which were provided temporary power connections---Validity---Installation of electric meters and billing of electricity in said schools was the function of Power and Gas Department and not of the Development Cell of appellant---Function of appellant was restricted to only of development and construction affairs---Said two schools were completed by appellant's Department i.e. Development Cell and were handed over to the Education Department, thereafter all matters pertaining to utilities i.e. electricity, gas etc. were functions of Power and Gas Department and not of Development Cell/appellant---Temporary power connections to said two schools were provided by Power and Gas Department and it was the duty of Power and Gas Department to information Electric Supply Company for issuing Electric bills or to make another alternate arrangement to ensure that for consumption charges of electricity bill the meters in the said schools were installed---Appellant, in circumstances was illegally held responsible for having failed to arrange payment of bills in respect of said two schools---Appellant being not guilty of charges levelled against him, impugned demotion order passed against him was set aside by the Service Tribunal and he was restored to his original position with all pecuniary benefits.

Abdul Ghafoor Mangi for Appellant.

Shaukat Ali Shaikh for Respondents.

Date of hearing: 11th May, 2005.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 85 #

2007 PLC (C.S.) 85

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

RASHEED AHMAD MEMON

Versus

NATIONAL HIGHWAY AUTHORITY (NHA) and others

Appeal No.259(K)CS of 2002, decided on 4th January, 2006.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

---Ss. 3, 5, 6 & 7---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Appellant serving as Engineer (BPS-19) was dismissed from service after issuing him show-cause notice and charge-sheeting him on allegation of misconduct, inefficiency, etc.---Disciplinary proceedings against appellant had not been drawn in accordance with Removal from Service (Special Powers) Ordinance, 2000---Allegations against appellant were not specifically mentioned in office order whereby Inquiry Committee of three officers was constituted under the orders of competent Authority---Inquiry was held on the basis of earlier statements of appellant and others and their statements were recorded in the form of question-answer by Inquiry Committee---Appellant denied the allegations contained in the two show-cause notices, but no chance of cross-examination was given to appellant---Validity---No chance having been given to appellant to cross examine the witnesses, disciplinary proceedings against him stood vitiated and on such proceedings appellant could not have been penalized legally---Where allegations of fact were denied, a departmental inquiry was absolutely necessary giving accused full chance of defending himself by means of cross-examination, but that had not been done in case of appellant by Inquiry Officer or Inquiry Committee---Regular inquiry, which had to be followed by a charge-sheet, was not dispensed with in the two show-cause notices and no reason for that was mentioned therein---Impugned order of dismissal otherwise issued by incompetent Authority, being illegal, void and nullity in the eyes of law, was set aside with direction to authorities to reinstate appellant in service from the date of his dismissal with all back-benefits for the period he was not gainfully employed elsewhere.

Pir Bux Langah v. Chairman, National Highway Authority and others Appeal No.1138(R)CE of 2002; 1997 PLC (CS) 873; 2003 SCMR 207; 2000 PLC (CS) 1252; 1997 TD (Service) 346; NLR 2003 (Service 1; 1980 SCMR 850; 1997 SCMR 1543; 2004 SCMR 316; 2004 SCMR 49; 2005 SCJ 455; 2003 PLC (CS) 314; 2003 SCMR 1126;, 1993 SCMR 683; 1996 PLC (CS) 868; PLD 1994 SC 22; 1985 PLC (CS) 219; 1990 PLC (CS) 745; 2003 PLC (CS) 7; 2003 PLC (CS) 365; 2003 SCMR 256; 2004 SCMR 294; PLJ 1999 TRC (Service) 374; 1992 SCMR 1789; PLD 1994 SC 222; 1996 SCMR 201; 1999 SCMR 841; PLD 1981 SC 176; 1987 SCMR 1562; PLC 2004 (CS).SC 1275; 2004 SCMR 1662; PLD 2002 SC 667; 1997 SCMR 1543 and 2005 SCMR 678 ref.

Ansari Abdul Lateef for Appellant.

Omair Nisar for Respondents.

Date of hearing: 27th October, 2005.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 251 #

2007 P L C (C.S.) 251

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

ABDUL QAYYUM

Versus

GUJRANWALA ELECTRIC POWER COMPANY LIMITED through Chief Executive Gujranwala and 3 others

Appeal No.673(L)(C.S.) of 2001, decided on 9th June, 2005.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3, 5, 6, 11 & 12-Service Tribunals Act (LXX of 1973), S.4---Awarding penalty of compulsory retirement from service---Appeal against---Letter for explanation was issued to the appellant under Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 wherein charge was levelled against appellant to the effect that he had received illegal gratification from a person for giving him electric connection for his tube-well---Removal from Service (Special Powers) Ordinance, 2000 having come into force at relevant time, department could not proceed against appellant under Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 as the Ordinance had overridden all other disciplinary laws including the said Rules---Action against appellant, was not legal and penalty imposed on him could not be maintained---Department should have proceeded against the appellant under Removal from Service (Special Powers) Ordinance, 2000.

Mian Jaffar Hussain for Appellant.

Muhammad Iqbal Khokhar for Respondents.

Date of hearing: 9th June, 2006.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 265 #

2006 P L C (C.S.) 265

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

TALAT QAMAR

Versus

COLLECTOR OF CUSTOMS PREVENTIVE and another

Appeal No.328(K) CE/2001, decided on 16th May, 2006.

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 3(b), 4(1)(b)(i) & 6---Service Tribunals Act (LXX of 1973), S.4---Imposition of major penalty of reduction to a lower stage---Appellant, who was serving as Senior Preventive Officer, was imposed major penalty of reduction to a lower stage in time scale by three stages after charge-sheeting him and holding inquiry against him on charge of misconduct and negligence of duty---Inquiry Officer having conducted a fact-finding inquiry instead of regular inquiry, no punishment could be imposed on basis of fact-finding Inquiry report---Inquiry Officer had also conducted inquiry in question and answer form which was not permissible in law---Inquiry was defective and improper and impugned order was non-speaking order as respondents in impugned order did not mention the period for which impugned punishment would be effective---No irregularity, misconduct and negligence was established against appellant---Inquiry report showed that nothing specific was proved against appellant, but despite that appellant was declared guilty of misconduct---Principles of natural justice had also been violated in the case---Impugned order in circumstances was set aside and appellant was restored to his original position from the date of impugned order with all back-benefits.

2003 PLC (C.S.) 353; 1985 PLC (C.S.) 519; 2003 PLC (C.S.), 365; PLD 2004 SC 441; 2003 PTD (Service) 247 & 410; 1993 SCMR 1440; 1995 PLC (C.S.) 462; PLD 1982 Peshawar 165 and 2004 PLC (C.S.) 157 rel.

Munawar Hussain for Appellant.

Khalil Dogar for Respondents.

Date of hearing: 20th April, 2006.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 324 #

2007 P L C (C.S.) 324

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD HASSAN CHANNA

Versus

SECRETARY, PAKISTAN CENTRAL COTTON COMMITTEE

Appeal No.434(K)(CE) of 2002, decided on 13th June, 2006.

Revised Leave Rules, 1980---

----Encashment of leave preparatory to retirement---Entitlement---Civil servant who, after attaining age of superanuation, was retired, was entitled to encashment of L.P.R. as per Revised Leave Rules, 1980, but encashment of L.P.R. was refused to him stating that it was not approved by the competent Authority---Instead of granting encashment of L.P.R. civil servant was granted 365 days leave---Validity---No reason had been given as to why encashment of L.P.R., was not approved---Department contended that civil servant was not granted encashment of L.P.R. due to his unsatisfactory record of service, but no action was taken against civil servant for any alleged misconduct, inefficiency or otherwise---In absence of any cogent reason on the part of Department for refusing to grant civil servant encashment of L.P.R., to which he was entitled under Revised Leave Rules, 1980, impugned order was set aside with direction to Department to pay civil servant encashment of L.P.R. for period of 180 days.

Ch. Rashid Ahmed for Appellant.

Akhlaq Ahmed Siddiqui for Respondent.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 367 #

2007 P L C (C.S.) 367

[Federal Service Tribunal]

Before Muhammad Afzal, Member-I

MUHAMMAD SARFRAZ WAFA and another

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB/AUTHORITY and 2 others

Appeals Nos.1643 and 1828 of 2004, decided on 27th December, 2004.

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3, 5, 6, 7 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Imposition of penalty of 'censure'-Appeal-Penalty of censure' was imposed on appellants after charge-sheeting them and holding inquiry against them on allegation that a complaint filed by a complainant was forwarded to appellants for furnishing report within seven days, but they failed to submit report despite as many as 22 reminders---Authorities had taken an inconsistent stance as on the one hand Authorities had discredited even Inquiry Officer by saying that conclusions drawn by Inquiry Officer were not corroborated from record as regarded submission of report by one of appellants and on the other hand same inquiry report had been made the basis for awarding appellants penalty ofcensure' and declaring two other co-accused as innocent---Charge-sheet itself was an inconsistent document as both appellants were found responsible for not responding to 22 reminders, whereas it was practically impossible because individual period of incumbency of appellants was not the same and both were not posted at the same time---Procedural lapses were committed by concerned Authorities perhaps, owing to some haste in punishing appellants---Appellants were not conveyed statement of allegations as per law---Record showed that required report was submitted by one of appellants, but was misplaced or was concealed by Secretariat staff---Said Secretariat staff was also_ responsible for not submitting report to Administrative Secretary in time---Impugned orders of imposing penalty on appellants having been found devoid of any legal and moral justification, were set aside in circumstances.

Muhammad Siddique Chaudhry for Appellants (in Appeal No.1828 of 2004).

Appellant in person (in Appeal No.1643 of 2004).

Rana Muhammad Yasin, District Attorney for Respondents.

Ijaz Halim Khan, Section Officer on behalf of Respondents Nos.1 and 2.

Muhammad Aslam Sukhera, AETO, on behalf Respondent No.3.

Date of hearing: 8th December, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 377 #

2007 P L C (C.S.) 377

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Ekram Hussain Jafri, Members

S. M. IMTIAZ and another

Versus

COMDT. COD KARACHI and another

Appeals Nos.135(K) and 136(K) of 1998, decided on 20th October, 1998.

(a) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4(1)(b)(iii), 5 & 6---Service Tribunals Act (LXX of 1973), S.4--Removal from service---Appeal---Appellant was removed from service after serving him with show-cause notice and holding full-fledged inquiry on allegation that he remained absent unauthorisedly from duty for a very long period---Appellant did not produce any evidence to prove that he got any prior permission to leave Headquarters and got his leave sanctioned---Appellant did not make any application for permission and sanction for leave prior to going on unauthorized absence from duty for such a long period---Disciplinary proceedings and other relevant record had shown that full-fledged inquiry had been conducted against appellant under Government Servants (Efficiency and Discipline) Rules, 1973 and in conducting said inquiry all relevant rules and well established principles of natural justice had been adhered to---No lacuna and illegality was found in conduct of disciplinary proceedings. against appellant---All notices and correspondence, calling appellant to assume duty and to participate in inquiry proceedings and to avail chance of adducing defence and an opportunity of personal hearing, were sent to appellant on his undisputed recorded residential address---In absence of any documentary and oral evidence of appellant, to the contrary an unauthorized long absence from duty having fully been proved, he had rightly been removed from service---In absence of any legal and factual infirmity, impugned order could not be interfered with.

1998 SCMR 1380 ref.

(b) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 5, 6 & 7---Inquiry proceedings---Ex parte proceedings---When civil servant neither participated in inquiry proceedings nor availed of opportunity of personal hearing before punishing Authority despite notice, ex parte proceedings could not be allowed to be objected to by civil servant.

1980 PLC (C.S.) 477 ref.

Kunwar Mukhtar Ahmad for Appellants.

Niaz Ahmed Khan for Respondents.

Date of hearing: 14th October, 1998.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 383 #

2007 P L C (C.S.) 383

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

Syed ZAHID HUSSAIN

Versus

DIVISIONAL ENGINEER, PHONE DIGITAL RAHIMYAR KHAN and another

Appeal No.27(L)(C.S.) of 2001, decided on 23rd November, 2004.

(a) Government Servants (Efficiency and Discipline) Rules, 1973)---

---Rr. 4(1)(a)(ii) & (b)(iii)---Imposition of penalties of stoppage of two annual increments and removal from service in consequence of de novo proceedings---Appeal---Appellant was awarded penalty of stoppage of two annual increments by competent Authority---Said Authority cancelled its own order vide its subsequent order and directed de novo proceedings---Such order was passed by Authority in the light of instructions contained in ESTACODE S.No.94---Since an adverse order of de novo proceedings was being passed against appellant, a notice to him was mandatory and without said notice competent Authority had no power to pass order to direct de novo proceedings---Though no time was fixed for revision of a punishment order under ESTACODE No.94, but competent Authority had to pass order within reasonable time and as to what was reasonable time would depend on merits of each case---Order for de novo proceedings was passed after about three months and in the meantime appellant had withdrawn his departmental appeal filed against order whereby two annual increments of appellant were stopped---Competent Authority, in circumstances, should have issued a show-cause notice to appellant before passing order for de novo proceedings---Illegality was committed by competent Authority in not issuing a show-cause notice to appellant before passing order for de novo proceedings---Order directing de novo proceedings, could not be maintained, penalty of removal from service imposed upon appellant on basis of said de novo proceedings, could also not be upheld---Order directing de novo proceedings and orders imposing penalty of removal from service as a result of said proceedings were set aside.

(b) Service Tribunals (Procedure) Rules, 1974---

----R. 5---Appeal to Service Tribunal sent by registered post within the limitation period--Such appeal, received after expiry of period of limitation, was to be treated within time.

Sheikh Abdul Hameed for Appellant.

Yousaf H. Dilawri for Respondents with Syed Kaleem Akhtar, S.D.O. (Phones), Rahim Yar Khan as Departmental Representative.

Date of hearing: 23rd November, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 437 #

2007 P L C (C.S.) 437

[Federal Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

MUHAMMAD ASLAM LAKHWERA and 2 others

Versus

CHIEF SECRETARY, PUNJAB, LAHORE and another

Appeals Nos.2307, 2308 and 2309 of 2004, decided on 1st February, 2005.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 4(1)(b)(i), 6 & 7---Punjab Service Tribunals Act (IX of 1974), S.4---Reduction to five stages lower in existing pay scale after charge-sheeting the appellants and holding inquiry against them on allegations that they had committed certain irregularities in making allotments of certain properties, violated Government instructions/policy in that behalf and also acted beyond jurisdiction---Inquiry was commenced against appellants on complaint of one who alleged that illegal/bogus allotment of Ahata sites was made by appellants---Inquiry Officer found that appellants were allotted Ahata sites in question without getting approval from District Collector concerned and that by so doing appellants had violated government instructions and also had acted beyond their jurisdiction and he recommended imposition of major penalty on appellants---Inquiry Officer after submitting .report was transferred whereafter inquiry proceedings were entrusted to other Inquiry Officer---Said other Inquiry Officer did nothing fresh and after recording statements of appellants supported inquiry report of his predecessor and Authority after hearing them, imposed penalty on them--Departmental representative in reply to query of Service Tribunal had admitted that land allotted by appellants was of category titled "Encroachers of State Land" and he further admitted that appellants in their capacity as Colony Assistants were authorized to make allotment under relevant provisions of Colonization of Government Lands (Punjab) Act, 1912 which had empowered appellants to make such allotments---Appellants charged latest price which Government had directed them to do so---Two witnesses who appeared before Inquiry Officer made huge concessions in favour of appellants which were repeated before Service Tribunal by Departmental representative, but despite that penalty was imposed on appellants---Inquiry Officer did not even examine complainant on whose complaint disciplinary proceedings were launched against appellants---Inquiry Officers, in circumstances not only had committed a grave irregularity, but had deprived appellants of a chance to cross-examine complainant---Impugned orders being not based on solid foundation, were quashed and set aside, in circumstances.

Pervaiz Inayat Malik for Appellants.

Khadim Hussain Sindhu, District Attorney for Respondent.

Javed Hussain Sial, Litigation Officer and Arif Qureshi, Section Officer S&GA Department, Departmental Representatives.

Muhammad Younas, H.C.(G) Office of DOE(R) Khanewal, Departmental Representative.

Date of hearing: 18th January, 2005.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 448 #

2007 P L C (C.S.) 448

[Federal Service Tribunal]

Before Nazar Muhammad Shaikh and Hasan Raza Pasha, Members

AZIZ-UR-REHMAN MALIK and others

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad and 2 others

Appeals Nos.177(R)(CS), 201(R)(CS), 283(R)(CS) and 284(R)(CS) of 2002, decided on 28th July, 2004.

Civil Servants Act (LXXI of 1973)---

----S. 9---Service Tribunals Act (LXX of 1973), S.4---Promotion---Eligibility---Appeals had been directed against promotion of respondent, an Officer of Office Management Group to BPS-19 by ignoring appellants who considered themselves senior to him---Irrefutable evidence provided by Secretary Defence Division had proved that an illegality was committed by the Authority by improving seniority of the said civil servant and thereupon promoting him by two levels in two hasty steps---Right created through illegality and colourable exercise of power, could not be designated as a vested right and as such had to be revoked---Service Tribunal accepting appeals had directed that seniority of all parties be restored to respective positions assigned to each in 1993 seniority list and appellants be considered for promotion to BPS-19 with effect from the date they became eligible for, the same.

Abdul Rahim Bhatti and Abdur Rashid Saqib for Appellants.

Jawaid Aziz Sandhu, Standing Counsel with Mehboob Alam, Section Officer, Establishment Division as Departmental Representative.

Lt.-Col. Iqbal Hashmi, Assistant Judge Advocate-General, for Respondent No.2.

M. Shoaib Shaheen for Respondent No.3.

Date of hearing: 1st July, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 462 #

2007 P L C (C.S.) 462

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Ekram Hussain Jafri, Members

MUZAFFAR JAMAL

Versus

AUDITOR-GENERAL OF PAKISTAN and 3 others

Appeal No.1233(K) of 1999, decided on 7th June, 2000.

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4(1)(b)(ii)---Service Tribunals Act (LXX of 1973), S.4---Compulsory retirement---Appeal against---Penalty of compulsory retirement was imposed upon appellant after serving him show-cause notice, but without holding any inquiry, on allegation that he was working prejudicially against senior officers of the Authority and had criticized the policy of Department, etc.---Appellant being President of Class-III Government Servants/Employee's Association was advancing cause of low paid employees---Questions whether appellant was working for interest of Government servants/employees in a lawful and legal manner or his acts were mala fide and he was misusing his position as President of said Association and had wrongly criticized officers, could only be determined by holding detailed inquiry---Said questions were heavily linked with recording of evidence in which appellant should have been associated and given an opportunity of cross-examination of witnesses appearing against him, but that had not been done in the case of appellant---Alleged statement of appellant did not contain any objectionable material/contents, rather his remarks were extremely laudable being in the interest and amelioration of employees of the department---Appellant being a President of Association, was legally supposed to defend cause of members of Association as well as agitate for better working conditions of Department---Appellant did not trespass limits of law whereas organization had jeopardized his rights by kicking him out from service without holding regular inquiry against him---Order imposing major penalty of compulsory retirement upon the appellant, was set aside and he was ordered to be reinstated in service with all back-benefits.

1983 PLC (C.S.) 423 and 199'9 PLC (C.S.) FST 849 ref.

Muhammad Ismail for Appellant.

Niaz Ahmed Khan, Standing Counsel along with Asif Aziz, Assistant Accounts Officer and Muhammad Umar Ghouri, A.O., Departmental Representative.

Date of hearing: 7th June, 2000.

2007 P L C (C.S.) 490

[Federal Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman, Moula Bux Khatian, Member-I

and Ashique Hussain Memon, Member-II

Mrs. SHAMA RASHDI and others

Versus

GOVERNOR OF SINDH and 3 others

Appeals Nos.63, 79, 117 of 2001, decided on 11th May, 2006.

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 3, 4(1)(b)(i)(iv) & 5---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service and reduction in rank---Appeal---Penalties of dismissal from service and reduction in rank were imposed on allegation of misconduct like embezzlement of huge government money and making illegal appointments, even in violation of ban imposed by Government on said appointments---Appellants were issued show-cause notices and inquiry was also held against them--Allegations levelled against one of the appellants, on the face of it, in the light of the correspondence made by appellant, appeared to be absurd and there was no mala fide intention on part of the appellant---Penalty of reduction in rank for a period of two years awarded to appellant, being opposed to facts brought on record, was neither maintainable nor sustainable and was liable to be set aside---Allegations of very serious nature levelled against appellants having been denied by them, regular inquiry was very much necessary---Previously, regular inquiry though was conducted, but since said disciplinary proceedings were withdrawn being infructuous on account of legal lacunae, findings arrived therein could not be made basis for awarding major penalty in subsequent proceedings---Impugned order in respect of two appellants, was set aside and matter was remanded for conducting fresh inquiry in accordance with existing law---Appellants were directed to be reinstated in service to clothe with status of civil servant only for purpose of facing fresh disciplinary proceedings, which would be concluded within specified period--Intervening period would follow the outcome of fresh proceedings.

Nizam Ali Khan for Appellant (in Appeal No.63 of 2001).

Ansari Abdul Lateef for Appellant (in Appeal No.79 of 2001).

Abdul Lateef Channa for Appellant (in Appeal No.117 of 2001).

Mrs. Tabassum Ghazanfar, Asst. A.-G. for Respondents.

Date of hearing; 11th May, 2006.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 506 #

2007 P L C (C.S.) 506

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

ABDUL SATTAR JAVED

Versus

GOVERNMENT OF PAKISTAN, through Secretary Ministry of Interior, Islamabad and 2 others

Appeal No.553(L)(C.S.) of 2001, decided on 22nd December, 2004.

(a) Civil Servants Act (LXXI of 1973)----

----S. 13---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.13---Premature retirement---Appeal---Appellant had been prematurely retired from service vide order dated 14-4-2001 on account of two minor penalties of censure imposed upon him on 17-9-1985 & 17-7-1995---Validity---Authorities, on said two minor penalties could not pass order of premature retirement---According to Art.13 of 'the Constitution, no person could be punished twice on the same charge---Once appellant was censured, he could not be awarded the penalty of retirement from service on same charge---Authorities, had violated provisions of Art.13 of the Constitution, in circumstances.

(b) Civil Servants Act (LXXI of 1973)---

----S. 13---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973); Art.13---Pre-mature retirement on completion of 25 years of service---Appeal---Government was the best Judge to decide the fitness of a civil servant for his further retention in service after he completed 25 years of his service, but in the present case facts were different that it was only in view of penalties of censure imposed long before pre-mature retirement that the charge of irresponsible attitude towards official work was levelled against appellant-Said charge was not an independent charge, but was dependent on the first charge relating to imposition of said penalties of censure---Since on the first charge on imposition of penalties of censure, appellant could not be compulsorily retired from service on principle of "double vexation the other charge also which was dependant on the first charge, appellant could not be retired from service---Legal position would have been different had the charge of `inefficiency' been independent of the first charge and not a part and parcel of the same-Impugned was set aside and appellant was reinstated in service with back-benefits.

2004 SCMR 707 ref.

Aurangzeb Mirza for Appellant.

Kh. Tariq Masood for Respondents with Muhammad Ishaque Bhatti, Deputy Director/NADRA, Multan as Departmental Representative.

Date of hearing: 22nd December, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 511 #

2007 P L C (C.S.) 511

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

MUHAMMAD SADIQ

Versus

POSTMASTER GENERAL, CENTRAL PUNJAB, LAHORE and another

Appeal No.379(L)(C.S.) of 2000, decided on 24th November, 2004.

Civil service---

----Move-over---Entitlement---Effect of adverse entries in ACR's---Civil servant was deprived of move-over from BPS-10 to BPS-11 w.e.f. 1-12-1996 due to adverse entries in his ACRs for the years 1995 and 1996---Said adverse entries for the years 1995/1996 were conveyed to civil servant vide letter dated 6-11-1997 which were received by him on 15-11-1997---Adverse remarks for the years 1995/1996, in circumstances were not conveyed to civil servant within prescribed time---Adverse entries having not been communicated to civil servant within .stipulated period, he could not be condemned and deprived of the benefits of move-over or promotion-Communication of adverse remarks after the date fixed for grant of move-over, would not adversely affect right of civil servant to move-over---Adverse remarks communicated to a civil servant to frustrate a right of promotion or move-over already acquired by him could not be used against him---Civil servant could not be condemned unheard with reference to adverse remarks not conveyed to him in time---Adverse remarks communicated to civil servant on 15-11-1997 would not affect his right to move-over which had matured on 1-11-1996.

1984 PLC (C.S.) 215 and 1994'PLC (C.S.) 12 ref.

Sheikh Abdul Hameed for Appellant.

Kh. Tariq Masood for Respondents.

Date of hearing: 24th November, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 518 #

2007 P L C (C.S.) 518

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

ABDUL QAYYUM ADEEL

Versus

AUDITOR-GENERAL OF PAKISTAN, ISLAMABAD and 2 others

Appeal No.462(L)(C.S.) of 2001, decided on 22nd December, 2004.

Government Servants (Efficiency and Discipline) Rules, 1973---

---Rr. 3(a)(b), 4(1)(b)(ii), 5, 6 & 7---Service Tribunals Act (LXX of 1973), S.4---Penalty of compulsory retirement---Appeal---Appellant was charge-sheeted for inefficiency and misconduct---Inquiry Officer duly appointed, exonerated appellant of all charges levelled against him, but Authorized Officer did not-agree with the Inquiry Officer---Authorized Officer, after issuing appellant show-cause notice, recommended compulsory retirement of appellant and competent Authority on said recommendation, retired the appellant compulsorily from service and he was also directed to pay amount as penalty---Appellant had challenged order of compulsory retirement in appeal---Validity---Authorized Officer was fully competent to reach his own conclusion after going through the inquiry proceedings conducted by an Inquiry Officer and he was fully empowered to disagree with the report of Inquiry, but rules of justice required that in case of difference of opinion, an Authorized Officer must give solid reasons for his disagreement with Inquiry Officer, but in case of appellant reasons given by Authorized Officer for disagreeing with Inquiry Officer, were not convincing--Only certain facts, which had emerged during course of inquiry, were highlighted by Authorized Officer---Inquiry Officer on the same facts had found appellant not guilty---Authorized Officer was required to give convincing reasons for arriving at a conclusion' not consistent with conclusion arrived at by Inquiry Officer, but in setting aside report of Inquiry Officer, had not given such reasons-Competent Authority, in circumstance was not justified in recording impugned order against appellant on basis of such recommendation of Authorized Officer---Competent Authority while deciding matter should have looked into the report of Inquiry Officer and that having not done, rules of justice and fairplay were not observed by Competent Authority---Impugned order passed against appellant was set aside and Authorities were directed to consider the entire disciplinary proceedings and decide case afresh within specified period.

Muhammad Yasin Bhatti for Appellant.

Kh. Tariq Masood for Respondents with Khalid Mahmood, Accounts Officer as Departmental Representative.

Date of hearing: 22nd December, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 524 #

2007 P L C (C.S.) 524

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

MUHAMMAD IQBAL KHAN

Versus

SMALL BUSINESS FINANCE CORPORATION through Chairman and another

Appeal No.2(L)(C.E.) of 2001, decided on 11th December, 2004.

Civil service---

----Premature retirement under Voluntary Separation Scheme---Employee opted for pre-mature retirement under Voluntary Separation Scheme floated by employer Corporation and employee was accordingly retired---Employee had claimed that he had withdrawn his option before its acceptance---Corporation had' conceded in its written objections that employee had sent an application for cancellation of his option exercised under Voluntary Separation Scheme before its acceptance---Principle of "approbation and reprobation" was not applicable to the facts of the case since it was admitted on part of Corporation that employee had not received his pensionary benefits---Non-acceptance of pensionary benefits was a sufficient proof of the fact that employee was not willing to go on retirement---Employee was competent to withdraw his option before its acceptance---Since employee had withdrawn his option before its acceptance, he should not have been retired notwithstanding stipulation in the Scheme that option once exercised could not be revoked---Scheme introduced by Corporation was an offer made to employee to enter into a contract---Before completion of contract i.e. acceptance of his offer for retirement, employee had made a representation that his option be deemed to have been withdrawn---Before contract could be completed between employee and Corporation, employee having withdrawn his offer, Corporation was not justified in ordering his retirement---Order retiring employee from service was set aside and he was ordered to be reinstated in service with back-benefits.

Abdul Wahid Ch. for Appellant.

Sardar Muhammad Tariq Dreshak for Respondents.

Date of hearing: 11th December, 2004.

2007 P L C (C.S.) 566

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

ABDUL WAHID SHAIKH and others

Versus

FEDERATION OF PAKISTAN and others

Appeals Nos.251-254(K)(C.S.) of 2003, decided on 20th November, 2006.

Civil Servants Act (LXXI of 1973)---

----S. 9---Service Tribunals Act (LXX of 1973), S.4---Promotion---Appeal to Service Tribunal---Three appellants who were M.Sc. (Zoology) and one who was M.Sc. (Botany) were selected through Federal Public Service as Plant Quarantine Inspectors in BPS-16 in Plant Protection Department---Three respondents, who were holding degree of B.Sc.(Hon) Agriculture, were also selected/appointed through Federal Public Service Commission on same posts of Plant Quarantine Inspector in BPS-16---Said three respondents despite being juniors to appellants were granted BPS-17 vide notification, whereas appellants who were seniors, were not granted BPS-17---Appellants had filed appeal to Service Tribunal impugning order of the Authority---Respondents in their written comments, had stated that prescribed academic qualification/experience for the post of Quarantine Inspector (BPS-16), was B.Sc. (Agriculture with specialization in Entomology/Plant Pathology or M.Sc. (Zoology/Botany) with special paper in Plant Pathology/Entomology---Respondents though were juniors to appellants, but they possessed the degree of B.Sc. (Hons) Agriculture, whereas appellants were simply M.Sc. (Zoology/Botany), which was not considered equivalent to B.Sc. (lions/Agriculture)---Main criterion was degree of M.Sc. Agriculture or B.Sc. (lions) Agriculture and appellants did not have any of them ---M.Sc. (Zoology/Botany) degrees of appellants, were treated in the advertisement as equivalent to simple B.Sc. Agriculture, whereas B.Sc. (Hons) Agriculture possessed by respondents was definitely superior to simple B.Sc. Agriculture---Fact that degree of M.Sc. (Zoology/Botany) was not equivalent to B.Sc. (Hons) Agriculture, was fully supported by Higher Education Commission and three Universities---Respondent, in circumstances had been rightly granted B.P.S.-17 and appellants, had not been discriminated.

Ansari Abdul Lateef for Appellants.

Asif Mangi, Standing Counsel for Respondents.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 696 #

2007 P L C (C.S.) 696

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

ABDUL KARIM

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION and others

Appeal No.787(K)CE of 2000, decided on 17th April, 2006.

Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985---

----Regln. 75(1)---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Appellant working as Security Guard, was dismissed from service after issuing him show-cause notice and holding inquiry on allegation that during loading of baggage, vigilance staff recovered three golden bangles from possession of loader and that appellant who was present at The recovery of said golden bangles, had connived and abetted in said theft---Entire case against appellant depended upon confessional statement of co-accused/loader, which statement had no value in the eyes of law---Order of dismissal from service was issued to appellant, despite he was acquitted of the charge against him---Three co-accused who were also acquitted with appellant, were allowed to remain in service, while disciplinary action had been taken against appellant by dismissing him from service, though his case at the most fell within the purview of negligence---Main culprit was loader---Whether appellant had any hand in the theft or whether he had knowledge that loader had in his possession bangles in question, needed to be proved by evidence, but no evidence was available to that effect, except the hearsay evidence and confession of accused loader before the police or vigilance team---Appellant could not be connected to said confession of loader as said confession could only be used against accused loader---Record had shown that Employer Corporation had adopted different methods for different officials in one and the same case---Counsel for employer could not satisfy the Service Tribunal on the point of discrimination meted out to the appellant---Double standard and discriminatory treatment on the part of Corporation, itself was sufficient to vitiate whole proceedings---Impugned order of dismissal from service passed against appellant was not only illegal, but had been passed in a discriminatory manner---Said order was set aside with direction to the Corporation to reinstate appellant in service with full back benefits for the period appellant remained out of job.

1993 SCMR 603; 2003 PLC (C.S.) 1306 and 1985 PLC (C.S.) 518 rel.

Sanaullah Noor Ghouri for Appellant.

Muhammad Umer, Associate of Masood A. Khan, Advocate for Respondents.

Date of hearing: 28th March, 2006.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 761 #

2007 P LC (C.S.) 761

[Federal Service Tribunal]

Before Nazar Muhammad Shaikh and Hassan Raza Pasha, Members

MUHAMMAD RAFIQ and others

Versus

PAKISTAN TELECOMMUNICATION COMPANY LTD. through Chairman and another

Appeals Nos.41(L)(C.S.) to 50(L)(C.S.), 164(L)(C.S.) to 169(L)(C.S.), 55(P)(C.S.) to 84(P)(C.S.), 271(P)(C.S.), 328(L)(C.S.), 509(R)(C.S.), 510(R)(C.S.), 527(R)(C.S.) to 543(R)(C.S.) of 2001, 610(R)(C.S.), 611(R)(C.S.), and 612(R)(C.S.) of 2002 decided on 22nd September, 2003.

Civil Servants Act (LXXI of 1973)---

----S.9---Service Tribunals Act (LXX of 1973), S.4---Promotion---Entitlement---Appellants were working as Telephone Operators (BPS-8) from different dates---Some of the appellants were Graduates and some intermediate and fulfilled conditions of experience to become eligible for promotion to BPS-11---One Telephone Operator having finally been promoted to BPS-11 through Court, appellants thereupon approached the department for considering them also for promotion in like manner---Claim of appellants having been rejected by the Authority, Appellants had filed appeal before Service Tribunal--Various Notifications issued with regard to promotion of employees of the Department, had provided rules with regard to promotion of employees---Rules provided that promotion could be allowed to Telephone Operator in BPS-8 if he was Matriculate with four years clean service or Intermediate with one year's service---Rules had allowed promotion as Telephone Operator in BPS-11 who were in BPS-8 & 10 provided they were Intermediate with four years unblemished service or Graduate with one year service---Said Rules had provided that posts of Telephone Operators in BPS-11 were available to Telephone Operators in entire Department whether they were working in Overseas Trunk Exchange or elsewhere---Department was directed to examine case of appellants who had the required qualification and experience to be considered for promotion to BPS-11 within specified period.

1996 SCMR 1185 ref.

Farooq Awan for Appellants (in Appeals Nos.41 to 49 and 164 to 169(L)(C..S.) of 2001).

Ilyas Monem for Appellants (in Appeals Nos.55 to 84(P)(C.S.) of 2001 and 271(P)(C.S.) of 2002 and 610 to 612(R)(C.S.) of 2002).

Shaikh Khalid Hakim for Appellants (in Appeals Nos.509 and 510(R)(C.S.) of 2001).

Shahzad Ahmad Malik for Appellants (in Appeals Nos.527 to 534(R(C.S.) of 2001).

Muhammad Ramzan Khan for Appellant (in Appeal No.50(L)(C.S.) of 2001).

Sardar Zakir Hussain for Respondents along with Mushtaq Ahmad, Assistant Director Engg.III, Legal, P.T.C.L., M.T.R. Multan (in Appeals Nos. 509, 510 and 610 to 612(R)(C.S.) of 2001).

Tausif Asif for Respondents (in Appeals Nos.55 to 84(P)(C.S.) of 2001) and 271(P)(C.S.) of 2002).

Mian Nazir Azhar for Respondents (in Appeals Nos.529 to 543(R)(C.S.) of 2001).

Umar Sharif for Respondents (in Appeals Nos.50, 166 and 167(L)(C.S.) of 2001).

Date of hearing: 18th September, 2003.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 785 #

2007 P L C (C.S.) 785

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

JAVED AHMED

Versus

CIVIL AVIATION AUTHORITY through Chairman and another

Appeal No.616(K)(C.E.) of 2003, decided on 29th November, 2004.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3, 5, 11 & 12---Service Tribunals Act (LXX of 1973), S.4---Civil Aviation Authority Service Regulations, Regln. No.5.27---Compulsory retirement---Appeal---Major penalty of compulsory retirement was imposed upon appellant on certain allegations under Regln.5.27 of Civil Aviation Authority Service Regulations after issuing him show-cause notice and hearing him personally---Validity---Removal from Service (Special Powers) Ordinance, 2000 being in force at the time when disciplinary. proceeding were initiated against appellant under Regln.5.27 of Civil Aviation Authority Service Regulations, proceedings against appellant were illegal, ab initio null and void because provisions of Ss.11 & 12 of Removal from Service (Special Powers) Ordinance, 2000 had overriding effect on any other law for the time being in force---Impugned orders passed against appellant were set aside and he was reinstated in service and case was remanded for de novo proceedings against appellant strictly in accordance with relevant law on the basis of same allegations.

2003 SCMR 1718 = 2003 PLC (C.S.) 1304; 2003 PLC (C.S.) 600 and 2004 PLC (C.S.) 1615 ref.

Munawar Hussain for Appellant.

Sanaullah Noor Ghouri for Respondents.

Date of hearing: 7th October, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 795 #

2007 P L C (C.S.) 795

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

AKHTAR ALI ZAIDI

Versus

PAKISTAN RAILWAYS through Divisional Superintendent and another

Appeal No.182(K)(C.S.) of 2001, decided on 9th December, 2004.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3, 5 & 11---Government Servants (Efficiency and Discipline) Rules, 1973, Rr.4(1)(b)(ii) & 5(1)(ii)---Service Tribunals Act (LXX of 1973), S.4---Compulsory retirement---Appeal---Major penalty of compulsory retirement from service was imposed upon appellant after charge-sheeting him on certain allegations against him---Disciplinary proceeding had been taken against appellant under Government Servants (Efficiency and Discipline) Rules, 1973 and he was imposed penalty at the time when Removal from Service (Special Powers) Ordinance, 2000 had already been promulgated---Due to such misapplication of law, entire disciplinary proceedings against appellant and order imposing penalty upon him, were illegal and void---As per S.11 of Removal from Service (Special Powers) Ordinance, 2000, said Ordinance had overruled all other existing laws on disciplinary proceedings against delinquent employee---Impugned order of compulsory retirement from service passed against appellant, was set aside and he was reinstated in service with direction to initiate de novo disciplinary proceedings against him within specified period strictly in accordance with provisions of Removal from Service (Special Powers) Ordinance, 2000 on the basis of same allegations against appellant.

PLJ 2003 SC 311; 1993 PLC (C.S.) 600 and 2004 SBLR 199 ref.

Sanaullah Noor Ghouri for Appellant.

Ch. Rashid Ahmed for Respondents.

Date of hearing: 9th December, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 806 #

2007 P L C (C.S.) 806

[Federal Service Tribunal]

Before Nazar Muhammad Shaikh and Qazi Muhammad Hussain Siddiqui, Members

MUHAMMAD AMIN

Versus

SECRETARY, PAKISTAN RAILWAYS and 2 others

Appeal No.150(K)(C.S.) of 2001, decided on 4th October, 2004.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3, 5, 6 & 7---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Appellant was dismissed from service without issuing him show-cause notice and without holding regular inquiry against him on allegation that huge Government revenue amount had been embezzled with his connivance---Besides certain legal infirmities pointed out by appellant in proceedings against him, show-cause notice had not been issued to him which was a major legal shortcoming in proceedings against appellant---Since appellant had denied allegations against him, it was incumbent upon Authorities to hold inquiry against appellant, which had not been done---Appellant had not been afforded reasonable opportunity to defend allegations against him--Order dismissing appellant from service was set aside and he was reinstated in service---Case was remanded to Authorities to hold de novo inquiry within specified period.

2001 SCMR 256; 2004 SCMR 316=2004 PLC (C.S.) 344; 1986 PLC (C.S.) 419; 2003 PLC (C.S.) 365 and PLD 2004 SC 441 ref.

Sanaullah Noor Ghouri for Appellant.

Latif Saghar for Respondents.

Date of hearing: 4th October, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 816 #

2007 P L C (C.S.) 816

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD AYUB

Versus

GENERAL MANAGER, (OPERATIONS) PAKISTAN RAILWAYS, and another

Appeal No.378(K)(C.S.) of 2002, decided on 2nd December, 2004.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3, 5, 6 & 7--Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Appellant was removed from service after issuing him show-cause notice and charge-sheet, but without holding inquiry against him on charges of misconduct, breach of discipline, inefficiency and corruption etc.---In view of serious allegations against appellant regular inquiry was absolutely necessary wherein opportunity should have been given to appellant to meet said allegations against him---One of the allegations against appellant was that he had undergone about ten minor punishments in the past---Some of said minor punishments had been waived off---Even otherwise said minor punishments could not be made basis of any other major penalty under principle of "double jeopardy"---Issuance of second show-cause notice and personal hearing, though had not been provided in Removal from Service (Special Powers) Ordinance, 2000, but there were numerous authorities of Supreme Court which had made it obligatory on the Agency, taking disciplinary action against employee for imposing major penalty, to issue final show-cause notice and also to provide him an opportunity of personal hearing---In the present case no inquiry was held against appellant, no second show-cause notice was issued to him and he was also not personally heard---Said discrepancies in disciplinary proceedings against appellant had shown that impugned order of removal of appellant from service was illegal and needed to be set aside---Impugned order passed against appellant was set aside and he was reinstated in service with back-benefits for the period he was not gainfully employed elsewhere during intervening period.

2004 SCMR 316=2004 PLC (C.S.) 344; 1984 PLC (C.S.) 610; PLD 1986 SC 162; PLD 1996 SC 207; 1996 PLC (C.S.) 1539; 1993 PLC (C.S.) 100; 1989 PLC (C.S.) 7671; 1997 PLC (C.S.) 873; 1993 SCMR 683; PLD 1994 SC 22; 1985 PLC (C.S.) 219; 1990 PLC (C.S.) 745; KLR 2004 Labour and Service Cases 201; 1989 SCMR 1224; 2002 PLC (C.S.) 738; 2004 PLC (C.S.) 959; KLR 2000 Labour and Services Cases 221; 1994 SCMR 2232 and PLD 2004 SC 441 ref.

Sanaullah Noor Ghouri for Appellant.

Ch. Rashid Ahmed for Respondents.

Date of hearing: 2nd December, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 839 #

2007 P L C (C.S.) 839

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

ABDUL GHANI CHANNA

Versus

VAKIL AHMED KHAN and another

Appeal No.215(K)(C.S.) of 2003, decided on 2nd January, 2007.

(a) Civil service---

----Adverse remarks---Expunction---Employee was unaware of reasons which prompted Reporting Officer to make adverse comments on the work of employee while he was working as Commissioner of Income Tax (Appeal)---Employee who had a service of about twenty nine years, was never communicated any adverse remarks in his A.C.R. and present was the only A.C.R. for the period August, 2001 to 30-6-2002 wherein adverse remarks were given---Previously, employee worked as Director Inspection and Audit, but his work was found satisfactory and no adverse remarks were reported in his A.C.R.---Reporting Officer had failed to state specifically the defects in A.C.R. before bringing same to the notice of employee---Countersigning Officer who incidentally was Appellate Authority also, while signing relevant column; had simply agreed with Reporting Officer and admitted that he had never seen the work of employee directly---Such admission on the part of, Countersigning Officer had created serious doubts and proved lack of reasonability and fair play in awarding adverse remarks---Natural justice demanded that while giving adverse remarks in A.C.R. it was imperative upon Countersigning Officer to have, either conducted an inquiry to know the facts or evaluate performance of employee and give him opportunity of hearing to clarify his position, but nothing favouring justice was done and defective finding of Reporting Officer was countersigned---Employee, in circumstances was condemned unheard---Reporting Officer had also violated the instructions contained in "A Grade to performance evaluation"---No justification, in circumstances existed in making impugned adverse remarks against employee in his A.C.R. for relevant year---Adverse remarks were ordered to be expunged, in circumstances.

Secretary Government of Punjab v. Ahmad Kamaluddin 1981 SCMR 392; Government of Punjab v. Abdul Matloob Khan 1990 SCMR 1430; Inspector-General of Police, Punjab, Lahore v. Rana Altaf Majid 1994 SCMR 1348; Director, Small Industries Department, Quetta v. Hameedullah Khan 1995 SCMR 768; Ch. Saeed Ahmad v. Federation of Pakistan 1996 SCMR 256; Noor Elahi v. Director of Civilian Personnel Rear Air Headquarters, Peshawar 1997 SCMR 1749 and Government of the Punjab v. Ehsanul Haq Sethi PLD 1986 SC 684 ref.

(b) Civil service---

---Adverse remarks---Expunction---Main adverse remark against employee was that "quality of the appeal orders was not up to the mark"---Quality of the orders could be judged only when the result of further appeal in the higher judicial forum was evaluated---Such adverse remarks in the A.C.R. were biased and did not reflect true and correct assessment made under Part-III of A.C.R. endorsed under column of countersigned by the competent authority---Even otherwise employee was not provided counselling during the year under report which was essential requirement of law---If an officer was to be given adverse remarks in his A.C.R., then the Reporting Officer was bound to issue prior written warning to him, which was not done in the present case---Reporting Officer in circu1 Lances had grossly violated the law---Adverse remarks in A.C.R. of employee were liable to be expunged, in circumstances.

Bashir Hussain v. Director-General Population Welfare Directorate Government of N.-W.F.P. 1988 PLC (C.S.) 394 and 1999 PLC (C.S.) 447 ref.

G.M. Lakho for Appellant.

S.M. Iqbal Shah for Respondents.

2007 P L C (C.S.) 928

[Federal Service Tribunal]

Before Muhammad Iqbal Khan and Nazar Muhammad Shaikh, Members

HAQ DAD KHAN

Versus

CHAIRMAN, PAKISTAN TELECOMMUNICATION COMPANY LTD. and 2 others

Appeal No.152(P)(C.S.) of 2001, decided on 8th November, 2002.

Civil Servants Act (LXXI of 1973)---

----S. 9---Service Tribunals Act (LXX of 1973), S.4---Ante-dated promotion---Withdrawal of---Appeal---Appellant had assailed order of Authority whereby his ante-dated promotion was withdrawn---Appellant who was appointed as Trainee Supervisor, finally was promoted as Assistant Divisional Engineer in B.P.S.-17---Meanwhile appellant improved his qualification and got the B-Tech (lions) degree, which had been treated equivalent to B.Sc.(Engineering)---Appellant filed a representation for promotion as A.D.E. (BPS-17) against 5% quota, but his request was not considered on the ground that B-Tech (Hons) degree was not equivalent to B.Sc.(Engineering)---Appeal filed by appellant in that respect was dismissed by Service Tribunal, but Supreme Court accepted his petition and appellant was issued his promotion order granting him ante-dated promotion as A.D.E. in BPS-17 with effect from 1-8-1986---Appellant was further promoted as Divisional Engineer vide Notification dated 7-6-2000---Appellant by virtue of Supreme Court decision was required to ~be granted seniority with effect from 1999 as D. E., but same was denied and instead his notification giving him benefit of ante-dated promotion was withdrawn---Validity---Appellant's case for promotion against 5% quota initially was denied to him on the ground that B-Tech degree was not equivalent to B.Sc.(Engineering) degree, but subsequently in the light of decision of Supreme Court, said issue was resolved---Since B-Tech degree had been. treated equivalent to B.Sc. (Engineering) degree, it was concluded that appellant was denied his promotion unjustly---Government's instructions and Supreme Court's decision, on the subject, were very clear that where a person was deprived of working against the higher post to which he was otherwise entitled, he was to be allowed all the ,consequential benefits if his right to hold higher post had been established---Notification whereby appellant was granted ante-dated promotion, was restored and his subsequent promotion would be governed as per rules.

2002 SCMR 1034; 1994 SCMR 2232; PLD 1995 SC 701; 1990 SCMR 1414; 1999 SCMR 1004; 2000 PLC (C.S.) 506; 1997 SCMR 15; 2000 PLC (C.S.) 600; 1998 SCMR 736; 1996 SCMR 850; PLD 1991 SC 1118; 1985 SCMR 1394; PLD 1991 SC 1118 and Muhammad Sadiq and others v. University of Sindh and others PLD 1996 SC 182 ref.

Appellant with his counsel.

Shoaib Shaheen, Advocate.

Date of hearing: 8th October, 2003.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 934 #

2007 P L C (C.S.) 934

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

EJAZ AHMAD

Versus

PRESIDENT, NATIONAL BANK OF PAKISTAN

Appeal No.697(L)(C.E.) of 2000, decided on 23rd September, 2004.

(a) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 3, 4(1)(b)(iii), 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Appellant serving as Officer Grade III in Bank was removed from service after charge-sheeting him and holding inquiry against him on charges of embezzlement of huge amount of public funds, unauthorizedly transferring huge amount from PLS Account to current Accounts just to escape from levy of Zakat---Further charge against appellant was that he unauthorisedly issued/encashed four Call Deposits Receipts to other account holders for the' purpose just to escape levy of Zakat upon them---Such acts of appellant allegedly had constituted misuse of his official position, breach of truss and gross misconduct---All charges levelled against appellant were found without basis---Appellant had not misused his official position nor he had committed any breach of trust and he was also not found guilty of any misconduct---Competent Authority had passed a mechanical order and Departmental Appellate Authority also passed a similar order without application of mind---Appellant could not be awarded major penalty of removal from service, in circumstances---Appeal against impugned order was accepted despite objection of respondents that it was time-barred and impugned order was set aside---Appellant was reinstated with back-benefits.

(b) Limitation Act (IX of 1908)---

----S. 5---Service Tribunals Act (LXX of 1973), S.4---Civil service---Misconduct---Appeal---Condonation of delay---Appeal filed by the civil servant was time-barred--Appeal filed by an other civil servant against the same impugned judgment was within time---Effect---Appeal could not be decided without determining the alleged misconduct of the appellant of time-barred appeal---Conduct of civil servant being the very foundation of the charges levelled against him, it would be a contradiction if the appeal of said appellant was dismissed as time-barred and in the connected appeal it was held that no misconduct was committed by the said appellant---Delay in filing the appeal was condoned in circumstances.

----S. 4---Government Servants (Efficiency and Discipline) Rules; 1973, Rr.3, 4(1)(b)(iii), 5 & 6---Removal from service---Appeal, limitation for---Delay, condonation of---Appeal filed by appellant against order of his removal from service being time-barred appellant had filed application for condonation of delay---Appellant had stated that appeal could not be filed in time as appellant was mentally upset and suffered an acute attack of anxiety and neurosis due to his removal from service and rejection of his departmental appeal---Such was not a good ground for condonation of delay---Application filed by appellant for condonation of delay was not supported by any medical certificate, but a ground of general nature had been pleaded therein---In absence of any good ground, delay in filing appeal, could not be condoned.

(d) Administration of justice---

----Imparting justice was not a function of the Courts only, but every human being was required, by whatever faith/religion he professed, to do justice.

(e) Civil service---

----Reduction in rank or reduction in pay---For punishment of reduction in rank or reduction in pay, the term degradation' was frequently used---No law provided for punishment of degradation---Though the worddegrading' meant to lower in grade or rank, but it was generally used to convey a message that a certain individual had been deprived of his dignity or he had been lowered in character having been disgraced---All departments of the Government should use such words as were provided in the relevant service laws---Penalty of reduction in rank should be awarded as reduction in rank and penalty of reduction in pay scale should be awarded as penalty of reduction in pay scale--Term degrade/degradation had to be avoided.

Appellant in person.

Muhammad Nawaz Bhatti for Respondents with Irfan Arif, OG-III, NBP Regional Office, Faisalabad and Abdul Majeed OG-III, NBP, Main Branch Samundari as departmental representatives.

Date of hearing: 23rd September, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 942 #

2007 P L C (C.S.) 942

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

ASADULLAH

Versus

GENERAL MANAGER (OPERATIONS) PAKISTAN RAILWAYS and another

Appeal No.375(K)(C.S.) of 2002, decided on 14th October, 2004.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3, 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal against---Appellant was removed from service on charge of misconduct, inefficiency and corruption---Petty offence of charging excess amount of Rs.30 from certain passengers for which appellant was not even punished, had been used against appellant after 8 years to prove charge of corruption against him---If appellant had committed any offence as alleged, why the Departmental Authority had slept over it and had not taken any action against appellant at that time---Entire proceedings against appellant were beyond apprehension as to why Department had to revive past and closed events to dismiss its employees without resorting to proper proceedings and failed to hold any enquiry even in a case of major penalty---Illegal acts of Authorities could not be condoned---Allowing appeal impugned order was set aside by Service Tribunal with direction to reinstate appellant in service from date of his dismissal with all back-benefits.

Sanaullah Noor Ghauri for Appellant.

Agha Zafir for Respondents.

Date of hearing: 8th September, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 945 #

2007 P L C (C.S.) 945

[Federal Service Tribunal]

Before Rashid Mahmood Ansari and Saeed Ahmed Zaidi, Members

MUHAMMAD MANSOOR SHAHZAD

Versus

CONTROLLER-GENERAL OF ACCOUNTS, Islamabad and 3 others

Appeal No.571(R)/(C.S.) 2004 of 2006, decided on 7th February, 2006.

Civil Servants Act (LXXI of 1973)---

----Ss. 8 & 9---Service Tribunals Act (LXX of 1973), S.4---Seniority---Promotion---Discrimination---Appeal---Appellant was appointed as Apprentice Accountant (B-16) by Auditor-General of Pakistan---According to terms and conditions as contained in appellant's appointment letter, he was required to pass S.A.S. Examination in three chances---Appellant who could. not qualify the examination within specified three attempts, requested 'for another chance, but instead of granting his request, Accountant General of Pakistan Revenues to whose office appellant was allocated, terminated his services as Probationer Accounts Officer, but simultaneously appointed him as Senior Auditor (B-11)---After termination of service of appellant, some of his colleagues who too had exhausted prescribed three chances to clear S.A.S. Examination, were granted another chance to appear in said examination---Appellant subsequently cleared S.A.S. Examination---According to the terms of appointment, Probationer Accountants were to be allowed seniority from the date they qualified their S.A.S. Examination---On filing appeal, Tribunal decided that Probationer Accountants would be given seniority with effect from the date they joined the Department, rather than from the date they qualified S.A.S. Examination---Controller General Accounts following Establishment Division's, advice, issued orders dated 8-2-2003 regarding fixation of pay and seniority of Apprentice/Probationer Accountants---Appellant was discriminated and treated unfairly as instead of granting him another chance to clear S.A.S. Examination like others; his services were terminated by incompetent Authority, who was not appointing Authority---Appellant, despite having qualified said examination subsequently and was promoted as Assistant Accounts Officer, was not reinstated nor was given benefit of seniority from the date of his initial entry into service---Once period of probation had elapsed without being extended in accordance with law, probationer would be deemed to-have been confirmed---No justification existed for the Authority, not to give effect to order regarding re-fixation of pay and seniority of appellant---Accepting appeal, Service Tribunal had directed that effect be given to order of Authority dated 8-2-2003 in appellant's case with all consequential back-benefits including seniority.

Haider Hussain for Appellant.

Javed Aziz Sindhu, Standing Counsel with Khadim Hussain, Accounts Officer, AGPR and Shaukat Mahmood, Assistant, Establishment Division as D.Rs. for Respondents.

Date of hearing: 7th February, 2006.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 953 #

2007 P L C (C.S.) 953

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD LATIF

Versus

FEDERATION OF PAKISTAN through Chairman/Secretary, Ministry of Railways and 3 others

Appeal No.402(K)(CS) of 2002, decided on 11th October, 2004.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3, 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal against---Appellant was removed from service after issuing him show-cause notice on charges of misconduct, breach of discipline, inefficiency and corruption---Major penalty of removal from service was imposed on appellant without holding inquiry against him and minor penalties imposed on him in the past were made basis for imposing said major penalty of removal from service---Validity---Minor penalties awarded to employee in the past could not be made basis for imposing major penalty of dismissal from service and major penalty could not be imposed without holding a regular, inquiry into allegations so levelled---Impugned order was set aside with direction to reinstate employee with back-benefits.

Muneer Ahmed and 3 others v. Divisional Superintendent, Pakistan Railways Sukkur and others KLR 2004 Labour and Service Cases 201 ref.

Sanaullah Noor Ghouri for Appellants.

Ch. Latif Saghar for Respondents.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 959 #

2007 P L C (C.S.) 959

[Federal Service Tribunal]

Before Justice (Retired) Amanullah Abbasi, Chairman and Muhammad Iqbal Khan, Member

ZAHOORUDDIN SHEIKH

Versus

PAKISTAN ATOMIC ENERGY COMMISSION through Chairman, Islamabad

Miscellaneous Petitions Nos.308, 386, 404 and 572 of 2003 in Appeal No.101(K)CE of 2001, decided on 22nd January, 2004.

(a) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4(1)(b)(iii), 5 & 6---Service Tribunals Act (LXX of 1973), Ss. 4 & 5---Removal from service---Reinstatement in service---Powers of Service Tribunal to implement its order---Appeal--Order of removal from service passed against appellant was set aside by Service Tribunal directing appellant to be reinstated in service with the condition that Authority would hold de novo inquiry proceedings within a period of six months from the date of judgment of Service Tribunal and that in case inquiry was not conducted and completed within six months, appellant would be entitled to all back-benefits provided appellant would file affidavit to the effect that he did not work for gain anywhere during period of his removal from service--Judgment of Service Tribunal was upheld by Supreme Court---As soon as Supreme Court declined to interfere with judgment of Service Tribunal, it became obligatory for the Authority to implement judgment of Service Tribunal and de novo disciplinary proceedings should have been held against appellant according to direction of Service Tribunal in its judgment, but same had not been done by the Authority---Authority had contended that six months period for commencement and completion of de novo inquiry proceedings against appellant would start from the judgment of Supreme Court as judgment of Service Tribunal stood merged in the judgment of Supreme Court---Contention of Authority was repelled because doctrine of merger was not applicable in the present case as Supreme Court had not changed directions contained in the judgment of Service Tribunal and did not give airy direction contrary to those contained in judgment of Service Tribunal---Non-implementation of judgment of Service Tribunal within stipulated period of six months had flouted the directions as prescribed therein---Charge-sheet, show-cause notice and removal order issued after expiry of said prescribed period-of six months, were void, non-existent and of no legal value---Setting aside order of removal from service passed against appellant, Authority was directed to ensure implementation of order within specified period.

PLD 1992 SC 549; PLD 1958 SC 104; 1999 SCMR 819=1999 PLC (C.S.) 409; PLD 1958 SC 104; 1989 PLC (C.S.) 398; PLD 1996 SC (AJ&K) 29 and 1997 PLC (C.S.) 929 ref.

(b) Service Tribunals Act (LXX of 1973)---

----Ss. 4 & 5---Judgment of Service Tribunal---Implementation of---Spirit underlying S.4 of Service Tribunals Act, 1974 was that a civil servant whose terms and conditions had been adversely affected by an original or appellate order, could approach Service Tribunal for redressal of his grievance subject to the conditions as laid down therein---Once a judgment was issued in favour of a civil servant, his terms and conditions as infringed by an order of the Authority stood addressed to the extent as ordained in judgment concerned---If the judgment was not implemented and petition for leave to appeal was either not filed or was declined by Supreme Court against judgment of Service Tribunal, no escape route was before the Department, except to implement the judgment in letter and spirit---In the event of department not complying with the directions contained in a judgment, after having exhausted legal remedies available, department would have no other alternative except to implement the judgment in the interest of supremacy of the rule of law.

----S. 151---Inherent powers of Court---Inherent power of civil Court to do right and undo wrong were preserved and kept by S. 151, C.P.C.---Where claw conferred jurisdiction, it also would grant powers of doing all such acts as were legitimate and were necessary for its execution.

M. Shoaib Shaheen for Appellant.

Raja Muhammad Asghar Khan for Respondent.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 978 #

2007 P L C (C.S.) 978

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD ARIF

Versus

DEPUTY INSPECTOR-GENERAL, PAKISTAN RAILWAYS POLICE, LAHORE and others

Appeal No.281(K)(CS) of 2002, decided on 24th July, 2004.

Railway Servants (Efficiency and Discipline) Rules, 1975---

---Rr. 4(1)(b)(iv), 5, 6 & 7---Service Tribunals Act (LXX of 1973), S.4---Service Tribunal (Procedure) Rules, 1974, R. 21---Dismissal from service---Appeal to Service Tribunal---Appellant was dismissed from service after issuing him show-cause notice and holding inquiry against him on the allegation that he carried passengers without tickets by taking money from them---Appellant was not afforded personal hearing and major punishment of dismissal from service had been imposed upon him on basis of fact finding inquiry conducted in violation of Rules and procedure and it was in question and answer form---In view of said infirmities, order of removal passed against appellant was set aside and he was directed to be reinstated in service---Authority could initiate fresh proceedings against appellant in accordance with law within specified period.

Sanaullah Noor Ghauri for Appellant.

Muhammad Asghar for Respondents.

Date of hearing: 24th July, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 983 #

2007 P L C (C.S.) 983

[Federal Service Tribunal]

Before Abdur Razzaque and Abdul Rashid Baloch, Members

ASHFAQ AHMAD and others

Versus

HABIB BANK LIMITED through President/Chief Executive Officer, Head Office, Karachi and others

Appeals Nos.201(P)CE, 494(P)CE and 203 (P)CE of 2001, decided on 14th April, 2003.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 2(aa), 3, 5 & 10---Imposition of penalties---Appeal to Service Tribunal---Penalties of demotion, stoppage of increment, warning and embargo on any important managerial assignment, were imposed on the appellant on charges of negligence/inefficiency in performance of duty, breach of law and rules and. regulations---Allegation against appellants was that an officer of branch of Bank of which appellants remained Sub-Manager and Chief Manager at the relevant times, had misappropriated huge amount fraudulently and appellants as his superiors did not exercise proper control, exhibited negligence and did not apply rules and regulations of the Bank thereby allowing said officer to continue his activities undetected---Disciplinary proceedings against appellants were mala fide of law as those were initiated by an incompetent Authority----Charges/memo of allegations were not communicated to appellants by Inquiry Committee and show-cause notices under S. 3 of Removal from Service (Special Powers) Ordinance, 2000 were also issued to appellants by incompetent Authority---Fact that proceedings against appellants, were mala fide of law, was sufficient to set aside impugned order against appellants---Order imposing penalties upon appellants, was set aside---Authority would be at liberty to conduct de novo proceedings against appellants in accordance with provisions of law within specified period.

House Building Finance Corporation v. Inayatullah Shaikh 1999 SCMR 311; PLD 1999 Pesh. 33; 1990 SCMR 999; PLD 1958 SC 104; 2001 CLC 1741 and 2000 PLC (C.S.) 270 ref.

Abdul Rahim Bhatti for Appellant.

Mian Abdul Rauf for Respondent.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 994 #

2007 P L C (C.S.) 994

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD SALEEM

Versus

GENERAL MANAGER, OPERATING, PAKISTAN RAILWAYS, LAHORE and others

Appeal No.49(K)(CS) of 2002, decided on 19th July, 2004.

Railway Servants (Efficiency and Discipline) Rules, 1975---

----Rr. 4(1)(b)(iii), 5, 6 & 7---Service Tribunals Act (LXX of 1973), S.4---Service 'Tribunal (Procedure) Rules, 1974, R.21---Removal from service---Appeal to Service Tribunal---Appellant was removed from service after issuing him show-cause notice and holding inquiry against him on allegations of omission, commission and irregularities in filling up certain papers and that he was found indulged in serious irregularities relating to train operation and safety---Major penalty of removal from service was imposed upon appellant on basis of fact finding inquiry conducted in violation of rules and procedure and. it was in question answer form---Appellant was not afforded personal hearing in disregard of rulings of the Supreme Court---Order of removal from service passed against appellant was set aside in view of said infirmities and matter was remanded for de novo departmental action as per rules .and strictly in accordance with law within specified period.

Sanaullah Noor Ghauri for Appellant.

Ch. Rashid Ahmed for the Respondents.

Date of hearing: 19th July, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 1006 #

2007 P L C (C.S.) 1006

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

KHALID AKHTAR and others

Versus

CHAIRMAN, WATER AND POWER DEVELOPMENT AUTHORITY, WAPDA HOUSE, LAHORE and others

Appeals Nos.84(L)(C.S.), to 87(L)(C.S.), 383(L)(C.S.) of 2002, 273(L)(C.S.), 324(L)(C.S.), 399(L)(C.S.), 424(L)(C.S.) and 543(L)(C.5.) of 2003 decided on 17th March, 2004.

(a) Civil Servants Act (LXXI of 1973)---

----Ss. 11-A [as inserted vide Civil Servants (Amendment) Ordinance (XX of 2001)] & 12---Service Tribunals Act (LXXI of 1973), S.4---Reversion---Appeal---Appellants who were declared surplus, were offered lower posts and on their acceptance were posted against lower posts---Appellants had urged that Authority absolutely had no power to revert them from their substantive posts to lower posts---Appellants had also contended that despite existence of vacancies they were reverted to lower posts---Further contention of appellants was that they had been made victims of discrimination as many employees who were junior to them were allowed to remain at their original posts whereas they being senior were demoted---Validity---Provisions of S. 11-A of Civil Servants Act, 1973, had given ample powers to the Authorities to absorb surplus employees either in same grade or on non-availability of vacancies iii the same grades on posts of lower grades---Since the pay of surplus employees was protected, Authorities had not violated any law or rule in reverting the appellants---Authorities, in circumstances; had power to post appellants against posts of lower grades---Allegations of appellants that they had been posted against lower posts despite existence of vacancies and that their juniors were not reverted and they, despite being senior, had been reverted, required consideration and grievance of appellants in that respect could be resolved by Authorities by providing appellants opportunity to produce evidence to prove that vacancies as alleged by them were existing and that their juniors had been promoted---Authorities were directed to decide said matter within specified period.

(b) Civil Servants Act (LXXI of 1973)---

----Ss. 11-A & 12---Service Tribunals Act (LXXI of 1973), S. 4---Reversion---Protection of pay and allowances---Appeal---Civil servants who were reverted to lower posts had alleged that, though their pay was protected, but their allowances were not protected and they had requested that their allowance be protected in the same manner in which their pay was protected---Authorities had contended that pay was substantial right of employees whereas an allowance was not given as of right and that for allowance the appeal could not be filed in Service Tribunal---Validity---Normally a civil servant on retirement gets pension on emoluments which he was drawing at the time of his retirement---Term `emoluments' would include pay and many other allowances permissible by rules---Authorities were not totally correct in saying that allowances were not part and parcel of pay which was drawn by a civil servant---Civil servants could not be deprived of allowances which they were getting with their pay in their original scales.

Asmat Kamal, Khan A. Hamid, Sheikh Abdul Hameed, Sh. Muhammad Nawaz and Ch. Muhammad Rafique for Appellants.

Aurangzeb Mirza, Muhammad Ijaz Chaudhry, Mian Muhammad Javed, Muhammad Amer Latif Khan and Qamar-uz-Zaman for Respondents with Iqbal Mahmood, Assistant. Director, S&GAD as Departmental Representative.

Date of hearing: 17th March, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 1011 #

2007 P L C (C.S.) 1011

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

ASGHAR ALI KHAN

Versus

GENERAL MANAGER PERSONNEL, PAKISTAN RAILWAYS, HQ. OFFICE, LAHORE

Appeal No.311(K) of 1998, decided on 15th July, 2006.

Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal, maintainability of---Appellant had tiled appeal without any original or appellate order made by Departmental Authority in respect of his claim of back-benefits including the amount allegedly deducted from his pensionary settlement account---Appellant had not complied with the provisions of S.4 of Service Tribunals Act, 1973 under which he was required to .file representation against any adverse order passed against him and a departmental appeal against such order---Appeal though was not maintainable, but there was lot of material available on record which supported. the claim of appellant about his entitlement to the benefits of appointment to/holding charge of higher post of B.S.16 and B.S.17, respectively---Authorities were asked to decide the case of appellant in the light of the settled law, documents, arguments and admitted position of payment---Appeal was disposed of with the direction to authorities to consider case of appellant within specified period.

PLD 1991 SC 1118; PLD 1991 SC 35 and 1998 SCMR 736 rel.

A.K. Qureshi for Appellant.

Raja Shams-uz-Zaman for Respondent.

Date of hearing: 3rd June, 2006.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 1015 #

2007 PLC (C.S.) 1015

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

REHMATULLAH

Versus

GENERAL MANAGER, Pakistan RAILWAYS and another

Appeal No.379(K)(C.S.) of 2002, decided on 7th June, 2004.

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4(1)(b)(iii), 5 & 6---Service Tribunals Act (XX of 1973), S. 4---Removal Prom service---Appeal---Appellant was removed from service after issuing him show-cause notice, but without holding inquiry against him on allegation of misappropriation of funds and theft---Major penalty of removal from service was imposed upon the appellant, not only without holding inquiry against him, but also without issuing him final show-cause notice about proposed punishment and appellant was also not afforded opportunity of personal hearing---No other evidence was on record to support allegations against appellant on basis of which he was removed from service---Order removing appellant from service was set aside and he was reinstated in service with full back-benefits.

2004 SCMR 316=2004 PLC (C.S.) 344; PLJ 2003 Tr.C. (Service) 231; 2004 PLC (C.S.) 959; Photocopy of Notification dated 21-9-2001; 1986 PLC (C.S.) 419; PLD 2004 SC 441; 1984 PLC (C.S.) 641; 2002 PLC (C.S.) 480; 2003 PLC (C.S.) 365 and 2003 PLC (C.S.) 1306 ref.

Sanaullah Noor Ghouri for Appellant.

Agha Zafir Ali for Respondents.

Date of hearing: 7th June, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 1020 #

2007 P L C (C.S.) 1020

[Federal Service Tribunal]

Before Moazzam Hayat and Jehan Zaib Burki, Members

AMIR HAMZA

Versus

CHIEF EXECUTIVE/CHAIRMAN/AEB, GUJRANWALA ELECTRIC SUPPLY COMPANY LIMITED, GUJRANWALA and another

Appeal No.282(L)(C.S.) of 2000, decided on 20th May, 2004.

(a) Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---

----R. 4(1)(a)(ii)---Service Tribunals Act (LXX of 1973), S. 4---Penalty of withholding of increments till retirement---Validity---Under provisions of R. 4(1)(a)(ii) of Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, increments could be withheld for a specific period and competent Authority had committed an illegality by stopping increments of the employee till his retirement---Employee had still 18 years. to serve---Authority, in circumstances was not justified in withholding increments of employee till his retirement---Such punishment, if sustained, would always be an obstruction in the promotion of employee to the higher rank, even if he earned good report and gave performance---Such was against the spirit of law that promotion of an employee was stopped till his retirement; increments could be stopped for a specific period in terms of years and it could not be ordered by Competent Authority that employee should not get increments till his retirement---Order being vague, could not be sustained---Order passed against employee was set aside, but in view of gravity of charge levelled against him, he would not be entitled to annual increment for a period of three years.

(b) Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---

----R. 4(1)(a)(ii)---Penalty of withholding of increments till retirement---Penalty of withholding of increments till retirement was awarded on employee on allegations on negligence tantamounting to misconduct against him---Employee who had been allowed to remain in service, it had committed misconduct of serious nature, major penalty of removal from service or retirement from service could be imposed upon him, but once he was allowed to remain in service, the stigma of punishment should have been removed from his career after a certain period; it could not be expected of him to work to the best of his ability while carrying over that stigma till his retirement as it was against the principles of "good governance" also to allow that stigma to continue till his retirement---Agony of employee had to end after a certain period---Words `specified period in R. 4(1)(a)(ii) of Pakistan WAPDA Employees (Efficiency and Discipline) Rules 1978, signified a reasonable period and not an unreasonable period depending on the gravity of charge---Stoppage of increment till retirement was tantamount to stoppage for an unreasonable period which was against spirit of law.

Sahnan Riaz Chaudhry for Appellant.

Mian Muhammad Javaid for Respondents with Tasawar Ali, Commercial Assistant/WAPDA as Departmental Representative.

Date of hearing:20th May, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 1023 #

2007 P L C (C.S.) 1023

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD ASLAM KHAN

Versus

SECRETARY TO GOVERNMENT OF PAKISTAN, MINISTRY OF PRODUCTION INDUSTRIES, ISLAMABAD and others

Appeals Nos.891 and 892(K)(C.E.) of 2002, decided on 26th June, 2006.

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 3(b) & 4(1)(b)(i)---Service Tribunals Act (LXX of 1973), S.4---Misconduct---imposition of penalty of reduction to one stage lower in the 'time scale---Appellant who was serving as, Deputy General Manager in Pakistan Steel, was reduced to one stage lower in the time scale with immediate effect on allegation of misconduct---Allegation against appellant was that he refused to give joining report to Department where he was transferred and that he remained absent from duty from 22-9-2000 to 19-12-2000---Validity---Appellant was ordered to join Production Directorate, which he joined without wasting time---Appellant, in circumstances did not defy the order of his transfer passed by the competent Authority at any stage---Authority also could not prove that appellant remained absent from 22-9-2000 to 19-12-2000---Opportunity of defence was not afforded to appellant, so much so that the documents produced by it were not exhibited nor the defence witness was called on request of appellant and neither enquiry report was provided nor personal hearing, was accorded before inflicting the penalty of reduction in one stage lower in time scale---Impugned order was set aside with direction to authorities to restore appellant to his original position and stage in time scale which he was enjoying prior to passing the impugned order, with all back-benefits.

Appellant in person.

Moira Azhar Siddiqui for Respondents.

Date of hearing: 24th June, 2006.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 1031 #

2007 P L C (C.S.) 1031

[Federal Service Tribunal]

Before Muhammad Iqbal Khan and Qazi Muhammad Hussain Siddiqui, Member

Qazi ANWAR-UL-HAQ

Versus

MANAGING DIRECTOR, KARACHI ELECTRIC SUPPLY CORPORATION LTD., KARACHI and others

Appeal No.1659(K)(C.E.) of 2001, decided on 15th June, 2004.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

---Ss. 3(1)(b)(c), 5, 6 & 10---Dismissal from service---Appeal---Appellant was dismissed from service under S. 3(1)(b)(c) of Removal from Service (Special Powers) Ordinance, 2000---Case of appellant was identical to case earlier decided by Service Tribunal wherein employee was reinstated in service---In view of identical position of case as decided earlier by Service Tribunal, order removing appellant from service was set aside and he was reinstated in service with direction to Authority to conduct fresh disciplinary proceedings against appellant in accordance with law after providing him full opportunity to defend allegation against him.

Sanaullah Noor Ghauri for Appellant.

Hafiz Abdul Baqi for Respondents.

Date of hearing: 15th June, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 1079 #

2007 P L C (C.S.) 1079

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

NASIR ABBAS SHERWANI

Versus

DIRECTOR-GENERAL, DIRECTORATE-GENERAL OF IMMIGRATION, PASSPORT OFFICE, HEADQUARTERS, ISLAMABAD and another

Appeal No.383(K)(C.S.) of 2002, decided on 25th July, 2006.

Government Servants (Efficiency and Discipline) Rules, 7973---

----R. 5---Service Tribunals Act (LXX of 1973), S.5---Civil Service Regulations (C.S.R.) Vol.I, Regln.194---Suspension---Appeal---Appellant against whom criminal cases were registered, was kept under suspension continuously for a period of about six years without approval of competent Authority and suspension was made effective retrospectively---Authority had contended that suspension of appellant continuously over several years was quite legal and justified as it was in accordance with Regulation 194 of Civil Service Regulations under which there was no need to seek repeated approval of competent Authority for keeping him under suspension for the reason that he was to be kept under suspension till termination of proceedings against him---Validity---Regulation 194 of Civil Service Regulations, did not override Government Servants (Efficiency and Discipline) Rules, 1973---Suspension of appellant was void in the eyes of law because period of suspension of appellant which should be initially for three months. extendable with the approval of competent Authority after every three months as required under R.5 of Government Servants (Efficiency and Discipline) Rules, 1973, was not done and appellant had been kept under suspension continuously for a period of about six years without approval of competent Authority---Suspension of appellant was liable to be set aside and he was to be treated on duty with all back benefits---No executive order could be made effective retrospectively as had been done in the case of appellant vide impugned order---Impugned order was set aside with direction to Authorities to treat appellant on duty for the entire period of his suspension with all consequential benefits.

1996 SCMR 201; 1985 SCMR 1178; PLD 1979 Lah. 699; 1984 SCMR 1578; PLD 1964 Dacca 647; PLD 1973 SC 236; 2002 PLC (C.S.) 1027; 2005 SCMR 492; 1996 SCMR 856; PLD 1976 SC 37; PLD 1967 SC 294; PLD 1965 SC 68; 1987 SCMR 1543; 1986 SCMR 962 and PLD 1969 SC 582 rel.

Sauaullah Noor Ghouri for Appellant.

Asif Mangi, Standing Counsel for Respondent.

Date of hearing: 19th July, 2006.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 1101 #

2007 P L C (C.S.) 1101

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

AFTAB AHMED KOLACHI

Versus

EXECUTIVE DIRECTOR, PERSONAL ADMINISTRATION DEPARTMENT, ZARAI TARQIATI BANK LIMITED and others

Appeal No.98(K)CE of 2003, decided on 24th June, 2006.

Government Servants (Efficiency and Discipline) Rules, 1973---

----R. 4(i)(b)(iv)---Service Tribunals Act (LXX of 1973), S.4---Dismissal from ,service---Appeal---Appellant was dismissed from service after issuing him charge-sheet along with statement of allegations in respect of irregularities committed by him during tenure of his posting---Main allegation against appellant was that he sanctioned about 182 loans against false and forged passbooks deliberately knowing the fact that such passbooks were fake and false---Irrespective of the gravity of charges, it was legal right of appellant to defend him in case he was charged with any act of misconduct, but appellant was not afforded any sort of opportunity in any shape to defend himself by way of holding a proper and legal inquiry---No inquiry at all was conducted to ascertain the truth or otherwise of allegations levelled in the charge-sheet, because appellant was never intimated about holding of any inquiry against him---If at all airy such inquiry was held, same would be treated as ex parte as appellant had no knowledge about any such inquiry, with the result no prosecution witness was examined in presence of appellant who was not afforded opportunity to cross-examine any such prosecution witness during alleged inquiry which was illegal and against the principle of natural justice---Excluding the enquiry proceedings, nothing remained against appellant to hold him guilty---Merely on the basis of a preliminary inquiry, particularly when no chance was provided to appellant/ accused to cross-examine the witnesses, charges could not be held to have been established against appellant---In view of such discrepancies, impugned order of authorities, dismissing appellant from service, was not sustainable---Impugned order was set aside with direction to authorities to hold de novo proceedings on the same charges giving appellant full and fair opportunity and allowing him to put up his defence.

PLD 1973 SC 236; 1985 SCMR 1178; 1986 SCMR 962 and PLD 1979 Lah. 690 rel.

1997 TD (service) 346 and 2002 SCMR 1004=2002 PLC (C.S.) 960 ref.

Haji Ghulam Muhammad Memon for Appellant.

Sanaullah Noor Ghouri for Respondents.

Date of hearing: 30th May, 2006.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 1110 #

2007 P L C (C.S.) 1110

[Federal Service Tribunal]

Before Rashid Ali Mirza and Muhammad Javed Ashraf Hussain, Members

Syed ANWAR ALAM

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad and 2 others

Appeal No.259(K)(C.S.) of 2004, decided on 13th December, 2006.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 2(b), 3(1) & 10---Service Tribunals Act (LXX of 1973), S.4---Misconduct---Compulsory retirement from service---Appeal---Major penalty of compulsory retirement from service was imposed upon appellant after issuing him show-cause notice and holding inquiry against him on certain allegations of omissions and commissions which constituted misconduct and corruption---Appellant had filed appeal against impugned order passed against him which was within tine statutory period and was not hit by limitation---Appellant was in the habit of being rude, harsh and disrespectful to his superiors and colleagues---Appellant seemed to have defaulted in initiating deduction from his salary for the first instalment of the house building advance and of having. received the second house .building advance, without completely liquidating the total amount of the first house building advance---Of all the charges, the charge that appellant failed to initiate the deduction of instalments of the first house building advance in time and received second advance without completely liquidating the first advance, seemed to be convincingly proved---No financial loss, however had been caused to the Government-, Other charges had not been conclusively established by the Inquiry Officer---Imposition of major penalty of compulsory retirement, in circumstances did not commensurate with the guilt, of appellant---Said penalty being too harsh, was liable to be reduced---Major penalty bf compulsory retirement was reduced to stoppage of increments for period of two years.

S. Riaz, Haider for Appellant.

Asif Hussain Mangi, Standing Counsel, D.R. Nisar Ahmed, Audit Officer for Respondents.

Date of hearing: 13th December, 2006.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 1125 #

2007 P L C (C.S.) 1125

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

ATIQUR REHMAN, ASSISTANT ACCOUNTS OFFICER, OFFICE OF ACCOUNTANT-GENERAL SINDH, KARACHI and others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and others

Appeals Nos.189(K)(C.S.), 190(K)(C.S.), 194(K)(C.S.), 195(K)(C.S.'), 196(K)(C.S.), 200(K)(C.S.), 202(K)(C.S.), 204(K)(C.S.), 206(K)(C.S.) and 208(K)(C.S.) of 2003, decided on 23rd December, 2004.

(a) Words and Phrases---

----"Void" and "nullify in the eye of law"---Meaning, scope and connotation of.

1975 SCMR 457; PLD 2002 SC 101; 2002 PLC (C. S.) 136 J ; 1975 SCMR 457; 1976 SCMR 48; 2000 SCMR 36; 1996 SCMR 850; 1994 PLC (C.S.) 46; PLD 2002 SC 101; PLD 1973 SC 236; PLD 1976 SC 258; PLD 1973 SC 236, 1985 CLC 1411; PLD 1987 Lah. 1012; PLD 1996 Kar. 429; 1978 SCMR 367, PLD 1977 SC 599; PLD 1975 Kar. 28 and PLD 1964 SC 97 ref.

(b) Civil Servants Act (LXXI of 1973)---

----S. 6---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.3(2) & 21---Appointment---Passing of prescribed examination---Under subsection (3) of S.6 of Civil Servants Act, 1973, passing of an examination, could be a condition for satisfactory completion of probation period but such examination, must be prescribed and Authority for prescribing conditions of such examination was Ministry of the Division concerned in consultation with the Establishment Division under sub-Rule (2) of Rule 3 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.

----No estoppel against law.

(d) Service Tribunals Act (LXX of 1973)---

----S. 4---Civil Servants (Appeal) Rules, 1977, R.4---Delay in filing appeal, condonation of---Failure to file departmental appeal---Effect---Delay in filing appeal could not on condoned, even if impugned condition of departmental examination was void or nullity in the eyes of law---Appellants having failed to file departmental appeal as provided under proviso (a) to S.4 of Service Tribunals Act, 1973 read with R.4 of Civil Servants (Appeal) Rules, 1977, their appeals were not maintainable under the law---Defect of non-filing of departmental appeal was not curable.

1996 SCMR 856; 1985 CLC 1411; 1988 MLD 1341; 1988 MLD 341; PLD 1970 Lah. 6; 1989 AD 283; PLD 1988 Lah. 184; 1987 SCMR 154; PLD 1974 SC 139; 1989 PLC 638; 1991 PLC (C.S.) 689; PLD 1959 SC 104; 1993 CLC 255; PLD 1977 SC 599; 1978 SCMR 367; 1989 CLC 937; PLD 1993 Quetta 121; 2002 PLC (C.S.) 1282 and PLD 2004 SC (AJ&K) 1 ref.

(e) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 21---Period of probation---Completion---Scope---Period of probation of a Government Servant was one year extendable to another year to be terminated by specific order and in absence of such order period of probation would be deemed to have been successfully completed after expiry of the extended period of one year.

(f) Civil Servants Act (LXXI of 1973)---

----S. 6(3)---Service Tribunals Act (LXX of 1973), S.4---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.3(2) & 21---Condition of holding departmental examination---Appeal---Appellants without airy objection appeared in departmental examination thrice, but failed to clear said examination---Contention of appellants was that condition of examination embodied in the terms and conditions conveyed to appellants was ab initio void and nullity in the eye of law---Validity---If appellants were given relief on said technical grounds holding conditions of examination as void, then serious problems were likely to crop up; for instance, all failures of present and past, would seek the same relief provided to appellants, which might cause lot of disturbance in various departments putting departments in an embarrassing position---No relief as prayed for by the appellants could be granted to them.

M.M. Aqil Awan for Appellants (in Appeals Nos.196, 204 and 206(K)(C.S.) of 2003).

Jahangir Shah for Appellants (in Appeals Nos.189, 190, 194, 195, 200, 202 and 208(K)(C.S.) of 2003):

Asif Mangi, Standing Counsel.

Date of hearing: 23rd December, 2004.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 1145 #

2007 P L C (C.S.) 1145

[Federal Service Tribunal]

Before Ch. Muhammad Ilyas and Muhammad Javed Ashraf Hussain, Members

Flt. Lt. FARRUKH RASHID

Versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and another

Appeal No.1410(R)(C.S.) of 2005, decided on 8th May, 2007.

Civil Servants Act (LXXI of 1973)---

----Ss. 5 & 11---Service Tribunals Act (LXX of 1973), S.4---Appointment----Termination of service---Appeal---Principle of locus poenitentiae---Application of---Appointment of appellant as A.S.P., was neither challenged nor made contingent upon any future development---Appointment letter issued to appellant was indicative of the fact that there was no protest from any official quarter including Federal Public Service Commission against his appointment---Appellant was allowed to complete his training and qualify Final Passing Out Examination conducted by Federal Public Service Commission---Nobody had challenged his appointment. and he continued to serve from 14-7-2003 to 31-3-2005, when he was terminated regardless of the principle of locus poenitentiae and due to none of his fault---Invoking the Principle of Locus Poenitentiae and having got a vested right in continuing with the job on the strength of established law in terms of dictum laid down vide 2003 SCMR 1128, appointment was perfectly in order and had been so declared and endorsed emphatically by both Law Division and the Attorney-General---Termination of appellant, in circumstances was ab initio illegal and devoid of justice in violation of principle of locus poenitentiae---Termination order was set aside with direction to authorities to reinstate appellant with effect from the, date of impugned order with all consequential benefits, subject to an affidavit by appellant to the effect that he was not gainfully employed during the intervening period.

2005 SCMR 57; 1996 SCMR 413; PLD 1992 SC 207; 1999 SCMR 1004; 1997 SCMR 15; 1996 SCMR 1413; 1990 SCMR 414; 1994 SCMR 2232 and 2003 SCMR 1128 ref.

Abdul Rahim Bhatti for Appellant.

Ehsanul Haq for Respondents with D.Rs. Mehboob Alam, Deputy Secretary, Abdul Hakeem Rahi, Section Officer, Establishment Division and Amin Tahir, Assistant Director, F. P.S.C.

Date of hearing: 21st February, 2007.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 1275 #

2007 P L C (C.S.) 1275

[Federal Service Tribunal]

Before Ch. Muhammad Arif, Chairman and Justice (R) Mansur Alamgir Qazi, Member

MUHAMMAD ASLAM

Versus

PAKISTAN TELECOMMUNICATION CORPORATION LIMITED

M.P. No.647 of 2006 in Appeal NO.855(1)(C.SA.) of 2004, decided on 30th September, 2006.

Pakistan Telecommunication Corporation Act (XVIII of 1991)---

----Ss. 9 & 10---Pakistan Telecommunication Re-Organization Act (XVII of 1990), S.7---Service Tribunals Act (LXX of 1973), S.4---Privatization of Corporation---Appeal to Service Tribunal---Effect---Abatement of appeal-Pakistan Telecommunication Corporation Limited when stood privatized by the government, its shares and also its management stood handed over to a company---Appellant who was on the strength of Pakistan Telecommunication Corporation till his retirement his presumptive pay had been fixed by the company---Retirement Notification of appellant had also been issued by the said company---Appellant, to all intents and purposes, was employee of said company---Nothing was on record to show that appellant had ever complained against his serving under the company---Appeal filed by appellant stood abated by operation of law, in circumstances.

Petitioner in person.

Gorsi Muhammad Din Chaudhry for Respondents.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 1309 #

2007 P L C (C.S.) 1309

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid All Mirza, Members

RAIS AHMED

Versus

PAKISTAN NATIONAL SHIPPING CORPORATION and others

Appeal No.99(K)(C.E.) of 2003, decided on 6th February, 2006.

Removal from Service (Special Powers) Ordinance (XVII of 2000)-

----Ss. 3 & 11---Pakistan National Shipping Corporation (Service) Regulations, 1984---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Appellant was dismissed from service after charge-sheeting him and holding inquiry against him on the allegation that he, on his own and in collusion with others, embezzled amount fraudulently---Disciplinary proceedings against appellant were taken under Pakistan National Shipping Corporation (Service) Regulations, 1984 instead of Removal from Service (Special Powers) Ordinance, 2000 which was already promulgated on 27-5-2000, whereas disciplinary proceedings against him commenced with effect from 15-10-2001 under Pakistan National Shipping Corporation (Service) Regulations, 1984---Validity---Entire proceedings against appellant, in circumstances, were rendered unlawful and void ab initio as S.11 of Removal from Service (Special Powers) Ordinance, 2000, said Ordinance had overridden all other laws for the time being in force---Impugned order of dismissal from service passed against appellant, was set aside in circumstances---Appellant having already stood retired on attaining the age of superannuation, reinstatement order was not passed---Appellant, however would be treated as on duty from date of his dismissal from service till his retirement from service.

2003 PLC (C.S.) 600; 2004 PLC (C.S.) 1615 and 1998 PLC (C.S.) 1430 rel.

Ghulam Sarwar Chandio for Appellant. Mushtaq Ahmed Shaikh for Respondents. Date of hearing: 25th January, 2006.

PLCCS 2007 FEDERAL SERVICE TRIBUNAL 1327 #

2007 P L C (C.S.) 1327

[Federal Service Tribunal]

Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members

MUHAMMAD SALIM PIRWANI

Versus

POSTMASTER GENERAL and another

Appeal No.303(K)(C.S.) of 2003, decided on 12th September, 2005. Government Servants (Effkiency and Discipline) Rules, 1973-------Rr. 3(b), 4(1)(b)(iv) & 21---Service Tribunals Act (IsXX of 1973), S.4---Dismissal from service---Appeal---Appellant was dismissed from service for the reason that a criminal case under S.156(1)(8) of Customs Act, 1969 was got registered against him---Appellant having been acquitted in said criminal case, there remained no basis for his dismissal from service or for imposition of any other punishment on appellant---Allowing appeal filed by appellant against order of his dismissal from service, impugned order was set aside by Service Tribunal with direction to authorities to reinstate the appellant in service from date of his dismissal---Intervening period would be treated as the kind of leave due.

Gulab Ali Sahito v. Director-General, Intelligence Bureau, Islamabad and 2 others 2002 PLC (C.S.) 243; Syed Shah Sawar and others v. Karachi Electric Supply Corporation Limited and others 2005 PLC (C.S.) 614; and Departmental Representative Muhammad Islam, Instructor, Animal Husbandary in-service Training Institute, Peshawar v. Government of N.-W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others 1998 PLC (C.S.) 1430 rel.

Ghulam Sarwar Chandio for Appellant.

Asif Hussain Mangi, Standing Counsel for Respondents.

Date of hearing: 8th September, 2005.

High Court Azad Kashmir

PLCCS 2007 HIGH COURT AZAD KASHMIR 1292 #

2007 P L C (C.S.) 1292

[High Court (AJ&K)]

Before Rafzullah Sultani, J

NOSHEEN HAMEED

[Karachi High Court]

Before Faisal Arab and Muhammad Ather Saeed, JJ

JAMIL AKHTAR SIDDIQUI and 978 others

Versus

STATE BANK OF PAKISTAN and others

Constitutional Petition No.D-1683 of 2006, decided on 26th January, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Retirement under Voluntary Golden Handshake Scheme---Petitioners along with hundreds of other employees opted to retire under "Voluntary Golden Handshake Scheme" floated by employer/Bank---Option of petitioners was duly accepted by Bank and they were relieved from service---When employees who had opted for retirement under Voluntary Golden Handshake Scheme were still in service, the Bank issued circular whereby salary structure of employees was raised which was effective from about 15 days prior to date, petitioners were relieved---Employees who opted for retirement under the Scheme were given salary at the revised rate uptill their retirement, but upon their retirement Bank calculated their emoluments under the Scheme on the basis of pay that was applicable at the time of exercise of option under said Scheme and not on the basis of the last drawn salary---Representation of petitioners against said conduct of Bank having been rejected; they filed appeal before Federal Service Tribunal, which was also dismissed---Petitioners then filed appeal before Supreme Court which was allowed holding that all emoluments, including pension as well as other retirement allowances, would be computed on the basis of last drawn salary---Bank computed the benefits under the said Scheme on the basis of last drawn salary of only those employees who had taken the matter to the Supreme Court, but refused to extend such benefit to other employees on the ground that they had not agitated the matter in any court of law---Validity---Bank could not be permitted to apply the same Scheme differently to a group of employees who, though in the same position, but their emoluments were calculated less favourably than the others---Such treatment could only be regarded as discriminatory liable for interference by the High Court in exercise of its constitutional jurisdiction---High Court held that benefits under the said Scheme had to be uniformly granted to all employees who opted to retire under the Scheme including petitioners, even though they had not agitated the matter earlier---As right sought in the constitutional petition pertained to a public right available to entire class of employees of a public Institution, there was no force in the plea of limitation taken by counsel for the Bank---Following the rule of consistency, petitions were allowed on the same terms as incorporated in the earlier order passed by High Court.

Pir Bakhsh v. The Chairman Allotment Committee PLD 1987 SC 145 and Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan 1996 SCMR 1185 ref.

Muneeb Akhtar for State Bank.

PLCCS 2007 KARACHI HIGH COURT SINDH 647 #

2007 P L C (C.S.) 647

[Karachi High Court]

Before Sabihuddin Ahmed, C.J. and Gulzar Ahmed, J

FAISAL AKRAM

Versus

SECRETARY PRODUCTION and another

Constitutional Petitions Nos.D-206 to 210, 402 and 403 of 2007, decided on 29th March, 2007.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioners who were employees of Pakistan Steel Mills Corporation, were aggrieved by the refusal of Corporation to accept their resignation and obtain an employment elsewhere on better terms despite having agreed to disburse the amount of Rs.50,000 contemplated in terms of surety bond executed by them at the time of obtaining employment---Resignations of petitioners were declined by the Corporation allegedly in the public interest as the Corporation was a semi-autonomous body working for the public interest under the control of Federal Ministry of Industries, Production and Special Initiatives---Position taken up by the respondents seemed to be self-contradictory---Services under the Corporation had not been declared to be essential for the life and well-being of the society and no restriction under the Essential Services Act, 1958 had been imposed--Petitioners could not be deemed to be civil servants for the purpose of S.2-A of Service Tribunals Act, 1974 in terms of pronouncement of Supreme Court in case PLD 2006 SC 602---Corporation authorities under no circumstances could place any fetters upon the petitioner's decision to terminate their contract of service but could only claim damage for the breach of contract, if any---Constitutional petition was allowed in circumstances.

Muhammad Mubinus Salam v. Federation of Pakistan PLD 2006 SC 602 ref.

(b) Constitution of Pakistan (1973)---

----Arts. 11 & l99---Constitutional petition---Master and servant---Concept---Refusal to accept resignation of employee by the employer---Fundamental rights, infringement of---Concept of master and servant contract pre-supposed voluntariness on the part of the parties and could not, under any ,circumstance be treated as a master and slave relationship---Article 11 of the Constitution had forbidden forced labour; and compulsory service could be required only by law for a public .purpose---Employer had contended that employment in the Corporation (Employer) was not regulated by any law, the imposition of fetters would be violative of fundamental rights guaranteed by Art.11 of the Constitution, for enforcement whereof, High Court could issue direction to any person or authority including any government---Fundamental right of petitioners to enter upon any lawful professional occupation also appeared to have been infringed, Constitutional petition was accepted.

Muhammad Ashraf Khan for Petitioners (in C.Ps. Nos.D-206 to 210 of 2007).

Liaquat Ali Khan for Petitioners (in C.Ps. Nos.D-402 and 403 of 2007).

Niaz Ahmed Khan for Respondent No.2.

PLCCS 2007 KARACHI HIGH COURT SINDH 663 #

2007 P L C (C.S.) 663

[Karachi High Court]

Before Zia Perwaz and Nadeem Azhar Siddiqi, JJ

MUSHTAQUE AHMED KORAI

Versus

ZARAI TARQIATI BANK LIMITED through President and another

Constitutional Petition No.D-951 of 2006, heard on 28th February, 2007.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Reinstatement of an employee---Master and servant, relationship of---Scope---High Court in proceedings under Art. 199 of the Constitution would, not order for reinstatement of an employee in a case involving relationship of master and servant.

(b) Words and phrases---

----'Case'-Meaning.

Black's Law Dictionary ref.

----Art. 199---Service Tribunals Act (LXX of 19734, S.2-A---Constitutional petition--Doctrine of de facto---Applicability---Past and closed transaction---Abetting of proceedings under S.2-A of Service Tribunals Act, 1973---Petitioner was reinstated in service on the basis of judgment passed by Service Tribunal---After pronouncement of judgment by Supreme Court in case titled Muhammad Mubeen-us-Salam v. Federation of Pakistan, reported as PLD 2006 SC 602, authorities terminated the service of petitioner---Plea raised by petitioner was that since he had been reinstated in service, therefore, his case was past and closed transaction---Validity---Bona fide actions of public functionaries in ordinary discharge of their duties were not struck down merely on the ground of subsequent findings as to legal infirmity either in the appointment or with respect to powers of Tribunal exercised in ordinary course of their business and declared otherwise in subsequent findings---Doctrine of de facto was attracted in such cases---Being past and closed transaction such cases would not fall within the ambit of conditions set forth in the judgment relied upon by the authorities, as no case was pending between the parties---High Court declared the relevant office memorandum to be unlawful and was set aside---Petition was allowed accordingly.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Anisa Rehman v. P.I.A.C. 1994 SCMR 2232; Prudential Discount and Guarantee House Ltd. v. Pakland Cement Ltd. CLD 2005 Kar. 1191; Zahida Sattar v. Federation of Pakistan PLD 2002 SC 408; Pakistan Red Crescent Society v. Nazir Gillani PLD 2005 SC 806; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194 and Black's Law Dictionary ref.

Lt.-Col. Farzand Ali v. Province of West Pakistan PLD 1979 SC 98; Abdul Salam Qureshi v. Judge, Special Court of Banking PLD 1984 Kar. 462; Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Jawaid Iqbal v. Kh. Muhammad Arif 1995 SCMR 13; Pir Sabir Shah v. Pakistan PLD 1994 SC 738 and Malik Asad Ali v. State PLD 1998 SC 161 rel.

Bhajandas Tejwani for Petitioner.

Imdad Ali Awan and Abdul Wahid Ansari for Respondents.

A.R. Farooq Pirzada, D.A.-G.

PLCCS 2007 KARACHI HIGH COURT SINDH 716 #

2007 P L C (C.S.) 716

[Karachi High Court]

Before Sarmad Jalal Osmany and Sajjad Ali Shah, JJ

MUHAMMAD AYAZ KHAN

Versus

GOVERNMENT OF SINDH and others

Constitutional Petition No.D-1175 of 2005.

(a) Civil service---

----Promotion, fitness for---Case of the civil servant for promotion was deferred on account of pendency of enquiry by National Accountability Bureau---Contention of the department that case of promotion was to be deferred till such time the enquiry was finalized, could not be substantiated because a person was presumed to be innocent until found guilty---High Court remanded the case of civil servant to the department with directions to decide his case of promotion etc, solely on merit and the Rules without taking into consideration the pendency of the NAB case against him.

Habib-ur-Rehman v. Defence Secretary, Government of Sindh and others 2003 PLC (C.S.) 56 and I.A. Sherwani and others v. Government of Pakistan 1991 SCMR 1041 ref.

(b) Service Tribunal---

----Jurisdiction---Matter concerning fitness of civil servant for promotion was beyond the jurisdiction of Service Tribunal.

Habib-ur-Rehman v. Defence Secretary, Government of Sindh and others 2003 PLC (C.S.) 56 and I.A. Sherwani and others v. Government of Pakistan 1991 SCMR 1041 ref.

Rasheed A. Razvi for Petitioner. Muhammad Ahmed Pirzada, A.A.-G. Sindh.

Ainuddin Khan for NAB (Sindh).

PLCCS 2007 KARACHI HIGH COURT SINDH 1046 #

2007 P L C (C.S.) 1046

[Karachi High Court]

Before Sabihuddin Ahmed, C.J. Sarmad Jalal Osmany and Mushir Alam, JJ

MUHAMMAD DAWOOD and others

Versus

FEDERATION OF Pakistan and others

C.P. No.D-159 of 2006, decided on 12th March, 2007.

(a) Service Tribunals Act (LXX of 1973)---

----S. 2-A---Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss.1(4) & 10---Jurisdiction of Service Tribunal---Supreme Court having declared S.2-A of Service Tribunals Act, 1973 only partially and not wholly invalid, a distinction, must, therefore, be made between corporation employees whose conditions of service were regulated by Statute and those regulated by internal rules or individual contract and the ouster of jurisdiction of Service Tribunal was .applicable only in respect o1' the latter category/regulated by internal rules or individual contract---Corporation employees had not been declared to be in service of Pakistan under Removal from Service (Special Powers) Ordinance, 2000 even through a legal fiction---Section 10 of the Removal from Service (Special Powers) Ordinance, 2000 was also ultra vires of Art.212 of the Constitution---Distinction ought to be maintained between 'cases where terms and conditions of employment were protected or governed by statute or statutory rules framed by the Government and those where they were determined by regulations framed by the corporate entities, themselves for their internal use or by way of bilateral agreement; in the former category of cases, relief of reinstatement could be obtained, but in the latter, the only remedy available to an aggrieved employees was to seek damages for breach of agreement---Said distinction was founded upon the hypothesis that internal regulations could be treated as implied terms of a contract of employment.

Muhammad Mubeen-us-Salim and others v. Federation of Pakistan PLD 2006 SC 602; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Collector, Sahiwal and others v. Muhammad Akhtar 1971 SCMR 681; R. v. Criminal Injuries Compensation Board (1967) 2 AER 770; Council of Civil Service Union v Minister for the Civil Service (1984) 3 AER 395; R. v. Panel on take-overs (1987).1 AER 564; Way back in Plees v. Ferguson decided in 1895 (163 US) 537; Salahuddin v. Frontier Sugar Mills PLD 1975 SC 244; Muhammad Yousuf Shah v. P.I.A. PLD 1981 SC 224; Principal, Cadet College Kohat v. Muhammad Shoaib Qureshi PLD 1984 SC 170; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Raziuddin v. Chairman, Pakistan International Airlines PLD 1991 SC '531; Karachi Development Authority v. Wali Ahmed Khan 1991 SCMR 2434; Anisa Rehman v. P.I.A. 1994 SCMR 2232; Benazir Bhutto's case PLD 1988 SC 416; Amanullah Khan v. Federation of Pakistan PLD 1990 SC 1090 and Walayat Ali Mir v. Pakistan International Airlines 1995 SCMR 650 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199(1)(a)(i)---Functions of public functionaries---Scope---All public powers were in the nature of a trust and public functionaries must act as repositories of such trust.

----Art. 199---Removal from Service (Special Powers) Ordinance (XVII of 2000), S.3---Constitutional jurisdiction---Scope---Rule of Master and servant---Applicability---Scope---Removal from service---Irrespective of an employee of a State controlled corporation, not being a civil servant corporations themselves would continue to remain amenable to the jurisdiction of High Court under Art.199 of the Constitution---Rule of master anal servant was inapplicable to cases where there was violation of statutory provisions or of airy other law---Expression "violation of law" would not be confined to violation of any specific provision of a statute, but expression "law" ought to be considered in its .generic sense as connoting all that was treated as law in the country including even the judicial principles laid down from time to time by the superior courts---Accepted norms of legal process postulate a strict performance of all the functions and duties laid down by law, and include the principles of natural justice, public duty to act fairly and honestly and absence of mala fides in fact and law---Court, in all such cases, would be competent to grant relief of reinstatement---All petitions complaining of removal under the provisions of Removal from Services (Special Powers) Ordinance, 2000 having been taken in exercise of statutory powers, were maintainable and High Court would be competent to consider whether action complained of was in accordance with provisions of Removal from Service (Special Powers) Ordinance, 2000---Where violation of law was alleged, High Court would be competent to entertain petitions and grant appropriate relief within the parameters of its jurisdiction under Art.199 of the Constitution---Where, however, grievance of petitioner was not founded upon any violation of law, but merely upon violation of a condition contained in the contract of employment, the rules of Master and Servant would apply and petitions would not be entertainable---Since upon the pronouncement of judgment as to absence of jurisdiction of Service Tribunal when petitioners had approached High Court for hearing on the plea that no alternate remedy was available any more, such petitions would be entertainable and dismissal of the earlier petitions, would not .be treated as res judicata.

Council of Civil Service Union v. Minister for Civil Service (1984) 3 AER 935; R, v. Secretary of States for Home (1995) 2 AER 244; Chairman Pakistan Broadcasting Corporation v. Nasir Ahmed and others 1995 SCMR 1593; Pakistan v. Public-at-large PLD 1987 SC 304 and government of West Pakistan v. Begun Agha Abdul Karim Sorish Kashmiri PLD 1969 SC 14 ref.

Choudhry Rasheed Ahmed, Farooq H. Naek, Muhammad Aqil Aware, Dr. Farogh Naseem, Shabbir Ahmed Aware, Khalid Jawed Khan, Hussain Bux Saryo, Iqbal Ahmed, Muhammad Nawaz Shaikh, Ghulam Sarwar Chandio, Siddiq Mirza, Abdul Razzak, Ms. Mahrukh Ghulam Ali, Sanaullah Ghori, Azizur Rehman, M.A. Hakeem and Mukhtar Ahmed for Petitioners.

Shahid Anwar Bajwa for Respondent.

Anwar Mansoor Khan, A.-G. Sindh.

Akhtar Ali Mehmud, Deputy Attorney-General.

Ms. Sofia Saeed, Standing Counsel.

Khalid Anwar, Amicus Curiae.

Dates of hearing: 2nd, 9th, 16th, 30th October, 6th and 13th November, 2006.

PLCCS 2007 KARACHI HIGH COURT SINDH 1300 #

2007 P L C (C.S.) 1300

[Karachi High Court]

Before Amir Hani Muslim and Nadeem Azhar Siddiqi, JJ

SHAUKAT ALI

Versus

FEDERATION OF PAKISTAN and others

C.P. No.D-148 of 2007, decided on 24th July, 2007.

Civil Servants Act (LXXI of 1973)---

----S. 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion---Section Officer placed before the court a sealed envelop claiming that on the basis of general remarks contained in the "Low Down" of the petitioner, he was superseded---Column of general remarks contained in "Low Down", contained vague allegations and were in conflict with remarks contained in A.C.Rs.---Section Officer stated that petitioner had not been given adverse remarks in the A.C.Rs., from 1984 till 2005---Petitioner, on the contrary, had been awarded either "outstanding", "good" or "very good" remarks and was also recommended for promotion---Intelligence report or pendency of any enquiry under NAB, could not authorize Selection Board to order supersession of an officer who otherwise was eligible and fit for promotion---Under R.5(e) of Guideline for Promotion Committee/Central Selection Board, "quality and output of work and integrity" had been made dependent upon the marks calculated in accordance with the formula in the addendum which were made crucial factor in determining the comparative merits of an officer---Petitioner under said formula had secured 82 marks, whereas eligibility threshold under that rule required securing 75 marks---Authorities were directed to consider the petitioner for promotion in the next Central Selection Board's meeting in BPS-20.

Muhammad 'Yousuf Butt .v. Central Board of Revenue and another 2007 PLC (C.S.) 718 and 2007 PLC (C.S.) 716 ref.

Muhammad Farogh Naseem for Petitioner.

S. Mahmood Alam Rizvi, Standing Counsel for Respondents.

Abdul Hakeen(?) Rahi, Section Officer Establishment Division, Islamabad.

S.M. Iqbal for Respondent No.3.

PLCCS 2007 KARACHI HIGH COURT SINDH 1315 #

2007 P L C (C.S.) 1315

[Karachi High Court]

2007 P L C (C.S.) 49

[Lahore High Court]

Before Sayed Zahid Hussain, J

MUHAMMAD SHAFIQUE

Versus

CHAIRMAN BOARD OF GOVERNORS, LAHORE MUSEUM/CHIEF SECRETARY PUNJAB, LAHORE and another

Writ Petitions Nos.8543 of 2006 and 12846 of 2005, decided on 8th November, 2006.

(a) Lahore Museum Regulations, 1987---

----Rr. 9 & 10---Punjab Civil Servants (Appointment and Conditions of

Service) Rules, 1974, R.15(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Post of Superintendent (BS-16)---Appointment of deputationist (BS-7) against post of Superintendent though not possessing requisite qualification and then his subsequent absorption against such post on permanent basis---Repatriation of petitioner (deputationist) to parent department after recalling order of his appointment and absorption against such post being contrary to law---Validity---Post of Superintendent was primarily a promotion post and for such appointment a Bachelor Degree from a recognized University with at least five years experience was required---Petitioner was only intermediate---Petitioner's appointment was violative of Government policy, according to which a civil servant could not be considered for deputation against a higher post in borrowing department, unless he was due for promotion in parent department---Selection Committee considering absorption of petitioner was legally constituted---Impugned order was legal---High Court dismissed constitutional petition in circumstances.

Muhammad Liaquat Munir Rao v. Shams-ud-Din and others 2004 PLC (C.S.) 1328; Dr. Azim-ur-Rehrnan Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Prof. Muhammad Wali Khan and another v. Secretary, Government of Sindh and others 2003 MLD 719.; Muhammad Rafique and 2 others v. Muhammad Pervaiz and 2 others 2005 SCMR 1829 and Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678 ref.

(b) Civil service---

----Promotion of deputationist against a higher post in borrowing department---Scope---Unless deputationist was due for promotion in parent department, he could not be considered against a higher post borrowing department.

----Past instances of erratic appointments could not be made a precedent to be followed for all times to come in future---No argument of discrimination could be built on such basis.

(d) Practice and procedure---

----Mistake, if committed in past and not pointed out or assailed, could not be allowed to become a precedent and perpetuated.

Ch. Nazir Ahmad Kamboh for Petitioner.

Aamir Rehman, Addl. A.-G., Punjab with Ibrar Aalam, S.O.(E), Information Department and Abid Saeed, Deputy Secretary Information Department and Muhammad Navid Shabir Goraya for Respondents.

Date of hearing: 8th November, 200 6.

PLCCS 2007 LAHORE HIGH COURT LAHORE 61 #

2007 P L C (C.S.) 61

[Lahore High Court]

Before Muhammad Saeed Akhtar, J

Prof. Dr. MUHAMMAD SAEED

Versus

GOVERNMENT OF PUNJAB and others

Writ Petitions Nos.20684 of 2002 and 2884 of 2003, decided on 22nd October, 2003.

University of Health Sciences, Lahore Ordinance (LVIII of 2002)---

----Sched., Para 3---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Appointment of Dean' of Institution of Dental Sciences---Respondent was posted as Professor of Dental Surgery and thereafter he was posted as Medical Superintendent of the Hospital vide a notification wherein he was described asProfessor', despite the fact that he never joined the teaching cadre nor taught in any of the institutions---On objection of petitioner, said mistake was rectified and word `Professor' was omitted from his name---Subsequently Provincial Governor re-designated the post of Medical Superintendent as Project Director/Dean of the Institute and appointed respondent as Project Director/Dean---Regulations framed by Pakistan Medical and Dental Council as well as Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979, had prescribed qualifications for a Professor and respondent did not possess said qualifications---Under Para.3 of Schedule of University of Health Sciences, Lahore Ordinance, 2002, a Dean of a Faculty could be appointed by the Chancellor from among the three senior-most Professors of the Faculty---Governor, no doubt was the Chancellor, but appointment of respondent as Dean under the garb of Project Director, had impinged upon said statutory provisions and the Rules--Re-employment of respondent was not in the public interest and in fact it would deprive a civil servant of his right to be appointed to said post--Respondent was retired at relevant time and his re-employment after reaching superannuation was discretionary with the Governor; it was one thing to confer a benefit on a civil servant, but it was another to defeat the law/rule to bolster an individual's case so as to destroy- another's right---Present matter did not pertain to the terms and conditions of petitioner---No appeal lay to Service Tribunal against an order or decision of Departmental Authority determining the fitness or otherwise of a person to be appointed or hold a particular post---Jurisdiction of High Court was not barred under Art.212 of the Constitution---Impugned Notifications of appointment of respondent as Dean were declared to be without lawful authority and of no legal effect and were quashed.

I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041 ref.

Muhammad Shahzad Shaukat for Petitioner.

Rana Muhammad Arshad Khan, Ch. Bashir, A.A.-G. with Dr. Sajjad-ul-Hassan, Director Law, Health Department and Zulfiqar Ali, S.O. (E-I), S&GAD for Respondents.

Date of hearing: 22nd October, 2003.

PLCCS 2007 LAHORE HIGH COURT LAHORE 138 #

2007 P L C (C.S.) 138

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASGHAR CH.

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman and 3 others

Writ Petition No.5000 of 2006, decided on 27th September, 2006.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Non-statutory Regulations---Remedy---Where power to frame Regulations is given to corporation established under a statute, then such Regulations are not to be treated as Statutory Rules, the breach whereof can be enforced by filing a suit and not by constitutional petition.

(b) Life Insurance (Nationalization) Order (10 of 1972)---

----Art. 49---State Life Employees (Service) Regulations, 1973---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Non-statutory Regulations---Petitioner being employee of a Statutory Corporation assailed his removal from service, before High Court under constitutional jurisdiction---Validity---Corporation was empowered under Art.49 of Life Insurance (Nationalization) Order, 1972, to make regulations with previous approval of Central Government, which included terms and conditions of service of employees or agents---Government having not vested itself with such power, the Regulations so framed by the Corporation were not statutory Rules---High Court advised the petitioner that he might file a suit for damages in case he believed that the proceedings were taken against him in violation of State Life Employees (Service) Regulations, 1973---Petition was dismissed in limine.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 602; Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 SCMR 468 and Federal Government Employees Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad PLD 2002 SC 1079 ref.

Muhammad Suleman Bhatti for Petitioner.

PLCCS 2007 LAHORE HIGH COURT LAHORE 152 #

2007 P L C (C.S.) 152

[Lahore High Court]

Before Syed Zahid Hussain, J

NEK ALAM CHEEMA

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary Establishment Division, Government of Pakistan and another

Writ Petition No.15491 of 2000, heard on 11th October, 2006.

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Arts.189 & 199---Constitutional petition---Maintainability---Laches---Petitioner being civil servant, sought similar treatment as was meted out to other civil servants in view of the judgment passed by High Court in year, 1982---Contention of authorities was that petition filed by petitioner in year, 2000, suffered from laches---Validity---Petitioner had been making repeated application time and again but without any positive response---Undoubtedly procrastination on the part of authorities was there and delay on their part could not be made a ground for non-suiting the petitioner---Such conduct of authorities could furnish a cause of action for agitating the matter before the Court---Objection raised by authorities to laches was not well founded---Petitioner was justified in seeking similar treatment and implementation of judgment of Service Tribunal---Petition was allowed in circumstances.

S. Inamul Haq v. Secretary Establishment Division, Government of Pakistan NLR 1982 Service 236; S.A. Rizvi v. Islamic Republic of Pakistan through Secretary, Establishment Division and 2 others 1991 MLD 1834 and Islamic Republic of Pakistan v. S.A. Rizvi 1992 SCMR 1309 ref.

Hameed Akhtar Niazi v. The Secretary, Establishment Division Government of Pakistan and others 1996 SCMR 1185; Khawaja Abdul Hameed Nasir and others v. National Bank of Pakistan and others 2003 SCMR 1030 and Inam-ul-Haq Shah and 3 others v. Government of the Punjab through Secretary Technical Education and Vocational Training Authority and 2 others 2006 PLC (C.S.) 11 rel.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Implementation of judgment passed by Service tribunal---Objection raised by authorities was that as the matter related to terms and conditions of service, therefore, petition was not maintainable---Validity---After judgment of Service Tribunal, petitioner was seeking implementation thereof and nothing more---Petition was maintainable in circumstances.

Inayatullah Cheema for Petitioner.

Zafar Iqbal Chaudhry, Deputy Attorney-General for Pakistan for Respondents.

Date of hearing: 11th October, 2006.

PLCCS 2007 LAHORE HIGH COURT LAHORE 168 #

2007 P L C 168

[Lahore High Court]

Before Syed Zahid Hussain and Jawwad S. Khawaja, JJ

Prof. ANWAAR A. KHAN, CHAIRMAN AND DEAN, SHAIKH ZAYED

POSTGRADUATE MEDICAL INSTITUTE, LAHORE

Versus

Prof. MUHAMMAD SAEED, PROFESSOR OF GYNAE/OBST. SHAIKH ZAYED POSTGRADUATE MEDICAL INSTITUTE, LAHORE and 2 others

I.C.A. No.258 in Writ Petition No.1753 of 2006, decided on 18th October, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Civil service---Promotion---Criteria for promotion to BS-21---Scope---Petitioner/Professor of Obstetrics and Gynaecology filed constitutional petition, seeking therein promotion to BS-21 from date when his juniors were promoted and for a direction of to the Government of Pakistan for his appointment as Chairman of the Hospital, being the senior most doctor---Respondents-Doctors/appellants who were granted scales 21 contended that neither grant of BS-21 nor appointment as Chairman of the Hospital could be claimed as a matter of right---Single Judge of High Court disposed of petition with observation that respondent-Government/appellant was to present petitioner's case before competent -Authority for considering petitioner's merit and fitness for promotion subject to his eligibility---Validity---Direction given by Single Judge that case of petitioner was to be placed before competent Authority for consideration of his promotion was uncalled for---As per Memorandum dated 29-12-2001 issued by Establishment Division, policy and legal position as to grant of BS-21 was quite plain inasmuch as that it was not a normal and formal promotion nor seniority itself was basis for the same---Promotion to BS-21 & 22 was not to be claimed as a right on basis of seniority or length of service alone---Grant of BS-21 was a matter for competent Authority to be considered in the light of prevailing policy---Appointment to office of Chairman of the Hospital, as claimed by petitioner in constitutional petition, fell within domain of Federal Government which being possessed of relevant record as competent Authority, was to take decision---No one could lay claim to such an office as of right---Petition was decided accordingly.

Hamid Khan and Imran Aziz Khan for Appellant.

Dr. Danishwar Malik, Deputy Attorney General for Pakistan.

Mian Bilal Bashir for Respondent No.1.

PLCCS 2007 LAHORE HIGH COURT LAHORE 177 #

2007 P L C (C.S.) 177

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUHAMMAD ABDULLAH and 4 others

Versus

GOVERNMENT OF THE PUNJAB, FINANCE DEPARTMENT, LAHORE and 2 others

Writ Petition No.6618 of 2005, heard on 20th September, 2006.

Civil service---

----Advance increment---Subject Specialist Teachers in Punjab---Advance increment on acquiring/possessing higher qualifications---Eligibility as per prevalent policy---SSTs were placed in BS-16 with 1/3rd in selection grade BS-17 vide notification dated 26-6-1990---Plea for grant of advance increments in terms of Finance Department Notification dated 25-8-1983 was rightly refused---Teacher having benefited under notification of 1990 would not be entitled to the grant of advance increment on the principle that it would amount to double benefit which is not admissible under any canon of interpretation.

Government of the Punjab through the Secretary Education and others v. Faqir Hussain and 5 others 2004 PLC (C.S.) 491 rel.

Tahir Mehmood for Petitioners.

Zafarullah Khan Khakwani, A.A.-G. with Basharat Ali Senior Auditor, D.A.O., D.G. Khan, and Imtiaz Haider, J/C, EDO Office, D.G. Khan for Respondents.

Date of hearing: 20th September, 2006.

PLCCS 2007 LAHORE HIGH COURT LAHORE 192 #

2007 P L C (C.S.) 192

[Lahore High Court]

Before Umar Ata Bandial, J

MUHAMMAD AFZAL MUNAWAR and others

Versus

SECRETARY FINANCE, GOVERNMENT OF PUNJAB and others

Writ Petition No.5618 of 2006, decided on 15th September, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Withdrawal of advance increments and deduction or amount from salaries of petitioners received for said increments---Grievance of petitioners was that by impugned notification issued by the Finance Department, two shortfall advance increments due to petitioners on account of acquiring higher educational qualifications, had been withdrawn and payments thereof already made to petitioners were directed to be deducted from petitioner's salaries---Petitioners had alleged that impugned letter/notification was issued on the basis of recommendations made by Provincial Ombudsman in proceedings to which petitioners were not parties and were never heard--Submission of petitioners was that irregular payment made by competent Authority for the services performed by employees of the government, could not be deducted from his subsequent salaries under the principle of locus poeniteniae---Validity---Grievances raised by petitioners, had never been presented before concerned respondent Authorities---Additional Advocate General had assured, if the impugned notification had violated any legal right of petitioners, same could be disputed by petitioners before competent authorities---Counsel for petitioners had expressed willingness to approach the authorities in terms laid down by Additional Advocate General---Petitioners, in circumstances were directed to file their representation before the authorities who would hear petitioners and decide their objections strictly in accordance with law within specified period---No deduction from current salaries of petitioners would be made to recover past payment of disputed shortfall advance increments until recording of a decision by competent authority and no future payment of .shortfall advance increment would be made to petitioners.

Muhammad Iqbal Mohal for Petitioners.

Najeeb Faisal Chaudhry, Addl. A.-G. for Respondents.

Saqib Akram Gondal for petitioner (in connected writ petitions).

Muhammad Afzal Naeem Ranjha, Litigation Officer, Office of the E.D.O. :Education M.B. Din/respondent No.4.

Qasim Mohsin, Office of D.A.O. Gujrat.

PLCCS 2007 LAHORE HIGH COURT LAHORE 208 #

2007 P L C (C.S.) 208

[Lahore High Court]

Before Jawwad S. Khawaja and Sayed Zahid Hussain, JJ

Syed NUSRAT JAMAL and another

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB POLICE, COMPLEX, LAHORE and 2 others

I.C.A. No.194 in Writ Petition No.712 of 2006 and I.C.A. No.195 in Writ Petition No.395 of 2006, decided on 8th November, 2006.

Police Order (22 of 2002)---

----Arts. 7(3), Provisos 185(a) & 112---Punjab Civil Servants Recruitment (Relaxation of-Upper Age Limit) Rules, 1976, Rr.1(b), 3(v)---Police Rules, 1934, Preamble---Constitution of Pakistan (1973), Art.199--- Law Reforms Ordinance (XII of 1972), S.3---Promotion of graduate Constables and Head Constables as Assistant Sub-Inspectors---Fixing of upper age limit---Rules being contrary to statute were to yield to the latter---Standing Order of Inspector General Police not to fix upper age limit---Standing Order neither approved by Provincial Government nor notified in official Gazette---Effect---Petitioners/appellants, were aggrieved of Standing Order passed by Inspector General of Police whereby he, for filling posts of Assistant Sub-Inspectors from amongst graduate Constables and Head Constables, fixed upper age limit for such graduate Constables at 33 years---Petitioners filed constitutional petition contending therein that Art.7(3) of Police Order, 2002 pursuant to which Standing Order and advertisement had been issued, did not stipulate an upper age limit for induction of graduate Constables and Head Constables as Assistant Sub-Inspectors---High Court (single Judge) while relying on Rule 3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, fixed upper age limit at 35 years for promotion of in-service Constables/Head Constables to the post of Assistant Sub-Inspectors---Petitioners filed Intra Court appeal against the finding of single Bench contending therein that as second proviso to Art.7(3) of Police Order, 2002, did not prescribe any upper age limit for promotion of in-service graduate Constables and Head Constables, therefore, Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, being contrary to statute, were to yield to it and that the said Rules had no application in the present case because petitioners were not candidates for recruitment to post of Assistant Sub-Inspector but were claiming promotion to such post on basis of their eligibility as per Art.7(3) of Police Order, 2002--Validity---Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 were applicable only in case of recruitment and not for promotion---Rule 1(b) of the Rules had specifically stipulated that the same "shall apply to the recruitment of all posts"---Distinction between recruitment and promotion was well recognized and connotation of two terms was understood in legislation as well as in case-law---Rules which applied to recruitment only did not apply to in service promotion envisaged in second proviso to Art.7(3) of Police Order, 2002, for which petitioners were candidates---Standing Order of Inspector General of Police failed to take note of essential distinction between promotion and recruitment and was also not consistent with provisions of Art.7(3) of Police Order, 2002---Second proviso to Art.7(3) of Police Order, 2002, only recognized Constables and Head Constables which related exclusively to promotion and not to direct recruitment whereas first proviso to Art.7(3) related to direct recruitment in rank of Assistant Sub-Inspectors---Law, for such recruitment, did not require a candidate to be either a graduate or Head Constables/Constable in police---Under Art.7(3) of Police Order, 2002, Inspector General of Police had not been given any power to lay down procedure for direct recruitment of Assistant Sub-Inspectors or for promotion of in-service Constables and Head Constables---Such matter exclusively lay within domain of Public Service Commission---Government-had been granted power to regulate promotion of in-service Constables and Head Constables by framing rules for this purpose---Rule 3(5) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, was applicable only where upper age limit had been prescribed under any service rules--Standing Order could not have fixed upper age limit; firstly, because Art.7(3) of Police Order, 2002 did not stipulate such upper age limit and secondly, bee, use there were no rules framed under Police Order, 2002, fixing upper age limit for such promotion---Police Rules, 1934, which had, subject to limitations, been saved under Art.185(a) of Police Order, 2002, also did not prescribe any upper age limit for promotion of in-service Constables/Head Constables to the post of Assistant Sub-Inspector---Standing Order of Inspector General of Police was neither approved by Provincial Government nor notified in official Gazette, consequently, it did not have status of rules conferred by Art.112 of Police Order, 2002 upon an instrument issued by Provincial Police Officer having such attributes--Standing Order could not be equated with rules framed under Police Order, 2002---Upper age limit of 35 years fixed by Single Bench for promotion of in-service Constables/Head Constables to post of Assistant Sub-Inspector was not in accordance with law---Petitioners/appellants were, thus, not ineligible for promotion to post of Assistant Sub-Inspector on account of their age.

Muhammad Siddique v. Secretary to Government of Pakistan, Ministry of Education and 2 others PLD 1996 SC 1997 distinguished.

Malik Ghulam Rasool for Appellants.

Fawad Malik and Naeem Masood, A.A.-Gs. For Respondents.

Date of hearing: 8th November, 2006.

PLCCS 2007 LAHORE HIGH COURT LAHORE 285 #

2007 P L C (C.S.) 285

[Lahore High Court]

Before Syed Zahid Hussain, J

Dr. MUNIR AHMAD and 37 others

Versus

GOVERNMENT OF PAKISTAN, FINANCE DIVISION, ISLAMABAD and 4 others

Writ Petitions No.3410, 5097 and 6528 of 2006, decided on 28th November, 2006.

(a) Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan (1973), Arts.25, 199 & 212---Constitutional petition---Maintainability---Discrimination---Terms and conditions of service---Jurisdiction of Service Tribunal---Scope---Stoppage of payment of allowance was assailed, alleging violation of Art.25 of the Constitution---Such stoppage was ordered by Accountant-General of Provincial Government, whose order was not appealable before Service Tribunal in terms of S.4 of Punjab Service Tribunals Act, 1974---Exclusion of jurisdiction of High Court would not be attracted in circumstances.

(b) Constitution of Pakistan (1973)---

----Arts. 2-A, 4, 25, 27, 37 & Preamble---Equality---Scope---Concept of equal protection and equality before law is hallmark of the constitutional scheme recognized by not only the Preamble, Objectives Resolution, Arts.4, 25 & 27 of the Constitution but also by the Principles of Policy contained in Art.37 of the Constitution---Equal protection and equal treatment of citizens similarly placed is universally accepted and recognized principle, which has been explained by many authors in text books and Judges in precedents---Statutory functionaries in a democratic set up cannot make any individual distinction for any extraneous reasons and exercise of discretion must be free of arbitrariness and caprice.

Due Process of Law by Lord Denning and Pakistan Petroleum Workers Union through General Secretary v. Ministry of Interior through Secretary, Islamabad and another 1991 CLC 13 ref.

----Art. 199---Constitutional petition---Discrimination---Petitioners were professors in different colleges holding Ph.D. degrees and teaching science/social science subjects---Grievance of petitioners was that special Science and Technology allowance being given to them had been discontinued on the directions of Accountant-General of Punjab---Validity---It was that higher qualification and holding of degree of Ph.D. which was the object of grant of such allowance, which was an incentive/benefit for those who acquired higher qualification and attained a distinct position of Ph.D. in respective subject/field---Initially the University Ph.D. professors/lecturers and of all others colleges were considered entitled to the grant of such allowance and were paid---Petitioners who were similarly holding Ph.D. degrees could not be excluded from the grant of such allowance---Through various letters, Chairman Higher Education Commission had been persuading the Government that Ph.D. level faculty members/colleges institutions were also entitled to the benefit of Science and Technology Allowance---Such was the reason that word "institution" mentioned in the order, dated 9-8-2002, whereby the allowance was granted, included within its ambit the colleges---Such approach seemed to be consistent with the rationale and logic behind the grant of such allowance i.e. higher qualification i.e. Ph.D. degrees as an incentive to those who had acquired higher qualification and excellence in the respective subjects---Stoppage of such allowance to petitioners was based on an incorrect approach to the matter contrary to the objectives of the grant of such allowance, which could not be sustained---Circular of Accountant-General of Punjab, whereby the allowance was stopped to the petitioners was declared as of no legal effect---Petition was allowed in circumstances.

I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Mian Muhammad Aslam v. The Auditor-General of Pakistan, Islamabad and 2 others 1995 PLC (C.S.) 1178; Dr. Aasia Mengal Principal, Regional Training Institute, Government of Pakistan, Quetta and others v. Government of Pakistan through Ministry of Population Welfare Division, Islamabad and others 2006 PLC (C.S.) 529; Government of N.-W.F.P. through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd., Mardan and others 1997 SCMR 1804; Federation of Pakistan through Secretary, Ministry of Education Government of Pakistan, Islamabad and others v. Qamar Hussain Bhatti and others PLD 2004 SC 77; Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others 2005 PLC (C.S.) 1335; Judicial Review of Public Actions by Justice (R) Fazal Karim; Law, justice and Islam, Justice Dr. Nasim Hasan Shah; Encyclopedia American Vol. 7, (1997) p.23 and Corpus Juris Secundum Vol. 44 pp.412, 413 ref.

(d) Constitution of Pakistan (1973)---

----Art. 25---Reasonable classification-Principle-For making distinction and classification there should exist a reasonable and just basis and not mere arbitrariness.

Union of India and another v. R.G. Kashikar and another AIR 1986 SC 431 and State of Maharashtra v. Manubhai Pragaji Vashi and others AIR 1996 SC 1 rel.

Malik Saeed Hassan with Malik Munsif Awan and Ch. Riasat Ali for Petitioners.

Dr. Danishwar Malik, Deputy Attorney-General for Pakistan.

Ch. Aamir Rehman, Addl. A.-G. Punjab.

Date of hearing: 28th November, 2006.

PLCCS 2007 LAHORE HIGH COURT LAHORE 326 #

2007 P L C (C.S.) 326

[Lahore High Court]

Before Mian Hamid Farooq and Iqbal Hameedur Rehman, JJ

MUHAMMAD ASHRAF SHAH

Versus

M.D.A. and others

I.C.A. No.23 of 2006, decided on 17th January, 2007.

Civil service---

----Pension---Grant, of increase in pension of civil pensioners---Withdrawal of benefit of increase in pension---Appellants being retired employees were receiving pension regularly on monthly basis---Subsequently Government granted increase in pension of Civil Pensioners and Employer Authority in its meeting adopted Government notification whereby increase in pension was granted---Appellants were granted said increase, but subsequently in its meeting the Authority had withdrawn benefit of increase in pension for a short time---Validity---Held, increase granted in pension was withdrawn by the Authority for a short time on the ground that decision of the Government for increase in pension was not binding on the Authority being a statutory body and that it was for the Authority itself to decide whether to increase the pension of its employees or not keeping in view its financial resources, independent of the Government notification---Authority having again decided to adopt increase in pension and appellants had started receiving pension without any objection, appellants by accepting said position, could not agitate matter any further---Amount already paid to appellants was never withdrawn and said withholding was for a 'short span of time---Impugned order not suffering from any legal error, Intra-Court appeal against said order was dismissed by High Court.

Director-General, Ordnance Services, General Headquarters, Rawalpindi v. Muhammad Abdul Latif 2003 SCMR 410 rel.

Athar Rehman Khan for Appellant.

Muhammad Amin Malik for Respondents.

Date of hearing: 17th January, 2007.

PLCCS 2007 LAHORE HIGH COURT LAHORE 329 #

2007 P L C (C.S.) 329

[Lahore High Court]

Before Fazal-e-Miran Chauhan, J

BASHARAT ALI

Versus

E.D.O. EDUCATION, and another

Writ Petition No. 13655 of 2006, decided on 22nd December, 2006.

Constitution of Pakistan (1973)---

----Art. 199 & 212---Constitutional petition---Appointment on contract basis---Termination of service---Petitioner was appointed on contract basis for three years---Services of petitioner having been terminated, he had filed constitutional petition against said order---Validity---Contractual service could be terminated and termination order could not be challenged by way of filing constitutional petition---Jurisdiction of High Court being barred by Art.212 of the Constitution, constitutional petition against order of termination of service, was not maintained.

M. Enver Shaukat v. Federation of Pakistan and another 1980 Law Notes (Lahore 752); Muhammad Ramzan Ansari v. Government of Pakistan and others (1983 PLC (C.S.) 52); 1987 MLD 153; Major (Retd.) Khalilur Rehman v. Overseas Pakistanis Foundation and another 1984 CLC 2168 and Muzaffar Hussain v. The Superintendent of Police District Sialkot 2002 PLC (C.S.) 442 ref.

Ghulam Murtaza Chaudhry for Petitioner.

PLCCS 2007 LAHORE HIGH COURT LAHORE 337 #

2007 P L C (C.S.) 337

[Lahore High Court]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD TAHIR ABBAS

Versus

DISTRICT POLICE OFFICER, DISTRICT GUMRAT and 3 others

Writ Petition No.4577 of 2005, heard on 21st December, 2006.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Application for recruitment as police constable--- Petitioner who joined Pakistan Army, was promoted to the post of Lance Naik---After serving for ten years and five months, petitioner elected to retire from Pakistan Army and transferred to pension establishment and he was discharged from service with grant of pensionary benefits---In response to an advertisement for the post of police constables, petitioner being eligible for the said post applied for recruitment as constable---Petitioner, who was declared fit for civil employment, fulfilled all requirements of recruitment as police constable, but was not considered for said post on the ground that he was not a regular retired Army personnel and that he was discharged from Pakistan Army on his personal request---Validity---Petitioner who elected to get discharged from service before his retirement, would be considered to be a `retired person' for the purpose of getting re-employment in civil service---Petitioner who would be deemed to be retired as Army personnel, was eligible for the post of constable---Accepting constitutional petition, authorities were directed by the High Court, to entertain application of petitioner, consider the same and pass appropriate order as per law and rules.

(b) Words and phrases---

---Retire',retirement' and `election', defined and explained.

Ch. Muhammad Rafiq Warraich for Petitioner.

Faisal Ali Qazi, Asstt. A.-G. with Muhammad Asghar, S.-I. Police Station Civil Lines, Gujrat for Respondents.

Date of hearing: 21st December, 2006.

PLCCS 2007 LAHORE HIGH COURT LAHORE 351 #

2007 P L C (C.S.) 351

[Lahore High Court]

Before Iqbal Hameedur Rehman, J

QAMAR ABBAS

Versus

MARKET COMMITTEE and others

Writ Petition No.2446 of 2005, decided on 18th January, 2007.

Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---

----R. 17-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment---Father of petitioner, who was employed as Sub-Inspector in the Market Committee, having died during his service, petitioner, after qualifying his Matriculation Examination, applied to Chairman, Market Committee for his appointment as Supervisor in scale 5 in the Market Committee on the basis of R.17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Repeated applications filed by petitioner having not been responded to by the Committee despite directions of authorities, petitioner moved constitutional petition---Validity---Rule 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was applicable to employees of Market Committee---Petitioner being son of deceased employee and having requisite qualification, was entitled for appointment of Supervisor in the Market Committee-Vacancy being available, Chairman Market Committee was directed by High Court to appoint the petitioner as Supervisor.

Ch. Muhammad Jameel for Petitioner.

Asim Pervaiz Khan for Respondent No.1.

Tajwar Ameen Secretary Market Committee.

Muhammad Qasim Khan, A.A.-G.

PLCCS 2007 LAHORE HIGH COURT LAHORE 372 #

2007 P L C (C.S.) 372

[Lahore High Court]

Before Mian Hamid Farooq and Iqbal Hameedur Rahman, JJ

MUHAMMAD AKRAM

Versus

D.H.O. VEHARI

Intra-Court Appeal No.74 of 2006, decided on 22nd January, 2007.

Constitution of Pakistan (1973)---

---- Arts. 25, 199 & 212---Law Reforms Ordinance (XII of 1972), S.3---Infra-Court appeal---Termination of service---Constitutional jurisdiction of High Court---Scope---Appellants, who were selected and appointed as dispensers and vaccinators by Recruitment Committee on orders of District Health Officer, served the Department for more than 13 years, but their services were terminated---Appellants challenged their termination in their constitutional petition before High Court alleging that District Health Officer, who had terminated their services, had neither authority nor was competent officer to pass impugned order---High Court dismissed constitutional petition declaring that matter pertained to terms and conditions of service and bar contained in Art.212 of the Constitution was fully applicable to the case---Validity--- High Court (Single Judge) had not appreciated that person who passed impugned termination order, had no authority to pass said order as he himself was a suspended person and could not be considered as competent authority---Orders passed by District Health Officer, in circumstances were void ab initio and illegal and in such circumstances, it would have been appropriate for the High Court to exercise its constitutional jurisdiction in striking down such an illegal order---Impugned orders had already been held to be illegal, not only by the Service Tribunal, but also by the Supreme Court---Exercise of constitutional jurisdiction of High Court in the matter would have been fully justified and appropriate---When services of other colleagues of appellants had already been regularized, appellants were also to be treated on the same footing and treating appellants as such was a clear violation of Art.25 of the Constitution on the part of Department and such discrimination, should have been safeguarded by the High Court by exercising its constitutional jurisdiction---Intra-Court appeal was accepted, impugned order of Single Judge of the High Court was set aside with directions to the Department to reinstate appellants in services on the same basis as other colleagues of appellants had been regularized.

Iqbal Hussain Pawar Hajwari and Muhammad Zawar Shah for Appellant.

Zafarullah Khan Khakwani, A.A.-G. with Dr. Muhammad Amjad Abid, D.H.O. for Respondent.

Date of hearing: 9th January, 2007.

PLCCS 2007 LAHORE HIGH COURT LAHORE 389 #

2007 P L C (C.S.) 389

[Lahore High Court]

Before Sh. Hakim Ali, J

MUHAMMAD SAEED

Versus

DISTRICT COORDINATION OFFICER, BAHAWALPUR and others

Review Application No.13 of 2006/BWP, decided on 14th September, 2006.

(a) Civil service---

----Repatriation---Government servant had no right to claim to remain posted in a particular department of his own choice, unless specifically contracted for a particular department and post---Government servant in the present case, had by his own will and choice joined the department, and only that parent department could order repatriation of the government servant at any time to his own department or to send him to any other department for a limited time and period---Government servant, in circumstances, could not desist from being repatriated to his parent department because adjustment to the Revenue Department of Naib Tehsildari Service was due to unavoidable circumstances as the parent department was going to lose its existence---When the department itself had resuscitated, government servant could not refuse to be posted with its own department.

(b) Civil Procedure Code (V of 1908)---

----S. 114---Review---Scope of review, is narrow and limited and cannot be stretched on the basis of some omission to consider facts or not making those facts, the part of judgment while deciding the facts---Judgments of superior Courts were delivered not on all points of facts, but on the material points and aspects, which in the mind of Judge were determinative factors for the just decision of a case---Exclusion from discussion in fact should be presumed to have given an impression that those points of law and facts were not considered material and relevant for the disposal of the lis and were not required any detailed discussion---Lengthy and irrelevant discussion in the judgment, were not to serve the case and cause of speedy administration of justice, it was to delay the adjudication of cases.

Ch. Muhammad Ashraf for Applicant.

PLCCS 2007 LAHORE HIGH COURT LAHORE 397 #

2007 P L C (C.S.) 397

[Lahore High Court]

Before Iqbal Hameedur Rahman, J

MUHAMMAD TARIQ

Versus

SECRETARY GOVERNMENT OF THE PUNJAB

Writ Petition No.4193 of 2005, decided on 9th January, 2007.

Civil Servants (Appeal) Rules, 1977---

---R. 4(2), proviso II---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Pro forma promotion---Entitlement---Petitioner working as Assistant in the Department was senior according to final seniority list and was recommended by Administrator of the Department for pro forma promotion, but he was not given promotion and instead his juniors were promoted---One of the Assistants who was junior was granted pro forma promotion due to the reason that his case was that of hardship because three persons junior to him had been promoted---Case of petitioner fell not only on the same footing, but rather on better footing as petitioner was senior most to all said Assistants---Petitioner also deserved relaxation which was granted to junior Assistant---Validity---Public functionaries while taking decision on such like cases, were required to deal with other similar cases on the same footing, rather than to show favourtism to one person and neglect the other---Petitioner's case should be considered on the same footings and he should have also been granted pro forma promotion along with Assistant who despite being junior had been granted same---Contention of department that constitutional petition by petitioner was not maintainable as the matter should have been agitated by the petitioner before Service Tribunal, was contrary to R.4(2), proviso II of Civil Servants (Appeal) Rules, 1977 as in the matters pertaining to fitness or otherwise, appeal did not lie---Constitutional petition was maintainable, in circumstances---Accepting constitutional petition, impugned order was set aside by the High Court with direction to the department to grant pro forma promotion to the petitioner.

2001 SCMR 1446 and PLD 1994 SC 539 rel.

Ahmad Raza for Petitioner.

Zafarullah Khan Khakwani, A.A.-G., Syed Najam-us-Saeed Shah Jillani, District Zakat Officer, Multan for Respondent.

Date of hearing: 9th January, 2007.

PLCCS 2007 LAHORE HIGH COURT LAHORE 405 #

2007 P L C (C.S.) 405

[Lahore High Court]

Before Sh. Azmat Saeed, J

MUNIR HUSSAIN---Petitioner

Versus

PIA through General Manager and 4 others---Respondents

Writ Petition No.2069 of 2006, decided on 1st December, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Petitioner serving as Aircraft Attendant moved employer Corporation that his service be regularized, but his request having not been adhered to, he filed constitutional petition---Petitioner was employed through contractor as he was not a permanent workman---Rules and Regulations of employer Corporation did not have status of statutory rules so as to confer a fundamental or legal right on petitioner to invoke constitutional jurisdiction of High Court---Constitutional petition being misconceived was dismissed, accordingly.

Habib Bank Ltd. and others v. Syed Zia-ul-Hasan Kazmi 1988 SCMR 60, Asad Ullah Mangi and others v. Pakistan International Airlines and others 2002 PLC (C.S.) 592 and Muhammad Naeem and 19 others v. Pakistan International Airlines Corporation through Chairman and 7 others 2006 PLC 374 rel.

M. Ehtesham Mirza for Petitioner.

Umar Sharif for Respondents.

PLCCS 2007 LAHORE HIGH COURT LAHORE 428 #

2007 P L C (C.S.) 428

[Lahore High Court]

Before Iqbal Hameedur Rehman, J

MUHAMMAD ARIF

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.5179 of 2006, decided on 12th February, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Posting and transfer---Petitioner serving as P.T.C. Teacher in Government High School at place B', was transferred to Government Middle School at placeM' and was relieved---When petitioner reported at his new place of posting at place M', Headmaster of that school did not allow him to join that school on the ground that there was no vacant post of P.T.C: teacher in the school---Transfer order had clearly stated that petitioner was being transferred against a vacant post---Petitioner, in the circumstances, applied to Executive District Officer for sending him back to High School at place B' from where he was transferred to school at place 'M', and he cancelled the transfer order---Petitioner, after cancellation of transfer order, approached the authority to join him at school at placeB' from where he was transferred, but petitioner neither was allowed to join that school nor his salary was released---Petitioner was made to suffer for no reason---Petitioner was made shuttle cock between place to place and pillar to post, but he was neither given duty nor posting at any of the places, nor he had been paid his salary---Withdrawal of order for cancellation of transfer after nineteen days through impugned order, was without lawful authority having been passed in a short duration leaving petitioner with no effective and efficatious remedy---High Court accepting constitutional petition filed by petitioner, set aside impugned order with direction to Executive District Officer (Education) to disburse pay of petitioner.

Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development and 2 others PLD 1995 SC 530; Syed Mazhar Hussain Bukhari v. Government of Punjab through Secretary, Local Government and Rural Development 1996 SCMR 59 and Akhlaq Ahmad v. Secretary to the Government of Punjab, Local Government and Rural Development Department, Lahore and 2 others 1998 SCMR 516 rel.

Malik Waqar Haider Awan for Petitioner.

Muhammad Qasim Khan, A.A.-G. for the State.

Ch. Muhammad Yaqoob, Deputy D.E.O. Tehsil Multan on behalf of Respondent No.2.

Respondent No.3 in person.

Date of hearing: 12th February, 2007.

PLCCS 2007 LAHORE HIGH COURT LAHORE 529 #

2007 P L C (C.S.) 529

[Lahore High Court]

Before Iqbal Hameed-ur-Rehman, J

MUHAMMAD SAMI ULLAH KHAN

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and 4 others

Writ Petition No.625 of 2006, heard on 18th December, 2006.

Police Rules, 1934---

----R. 12.1---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment on "Shaheed's claim"---Father of petitioner serving as Sub-Inspector in the Police Department was martyred in a police encounter---Petitioner who, at the relevant time was studying in 10th class and was about 16 years of age filed application for his enlistment in Police Department in the rank of A.S.-I.---Case of petitioner was kept pending till completion of his studies and becoming 18 years of age---After clearing his F.A. examination, petitioner again filed application for enlistment as A.S.-I., but he was recruited as Constable on "Shaheed's claim"---Petitioner being aggrieved with his said appointment as Constable instead of A.S.-I., approached the Authorities, but his application was not accepted---Validity---Petitioner on his earlier application was assured that on completion of his studies and coming to the age would be appointed as A.S.-I. on "Shaheed's claim" basis---Petitioner, in circumstances was entitled to be appointed as A.S.-I.---Question of waiver would not arise in the case of petitioner as petitioner had accepted post of Constable on assurance of Authorities that he would be entitled to the post of A.S.-I.---Contention of Authorities that as after promulgation of Police Order, 2002, for enlisting as A.S.-I, recommendation of Punjab Public Service Commission was required, and appointment of petitioner could not be made as A.S.-I., was repelled as Governor of Punjab had relaxed Rule, 12.1 Police Rules, 1934 and about nine posts of A.S.-I.'s were taken out of purview of Punjab Public Service Commission for appointment on `Shaheed Claim' basis---Case of petitioner being similar to said nine persons, he was also entitled for relaxation of Rules and to be appointed as A.S.-I.

Khawaja Qaisar Butt for Petitioner.

Muhammad Qasim Khan, A.A.-G. with Muhammad Saeed Inspector.

Date of hearing: 18th December, 2006.

PLCCS 2007 LAHORE HIGH COURT LAHORE 540 #

2007 P L C (C.S.) 540

[Lahore High Court]

Before Maulvi Anwarul Haq, J

Syed GHOUS ALI SHAH and another

Versus

DISTRICT ADMINISTRATION through District Nazim, Multan and 3 others

Writ Petition No.3540 of 2002, heard on 6th September, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Selection grade---Refusal to grant---Petitioners were employees of District Administration and vide a letter issued by Provincial Government, Zila Councils in the Province were directed to give selection grade to Goods Exit Tax Staff, but same was not done by Zila Councils---Petitioners had filed constitutional petition against said denial---Counsel for petitioners had produced copy of an order whereby selection grade had been granted to 49 similar employees with retrospective effect---Such position was affirmed by counsel for authorities---Allowing constitutional petition, authorities were directed by High Court to take steps so as to award selection grade to petitioners, as well.

Sh. Ghias-ul-Haq for Petitioners.

Zafarullah Khan Khakwani, A.A.-G. with Haji Muhammad Aslam Malik for Respondents.

Date of hearing: 6th September, 2006.

2007 P L C 585

[Lahore High Court]

Before Syed Hamid Ali Shah, J

MUHAMMAD ASLAM

Versus

DIRECTOR-GENERAL, LAHORE DEVELOPMENT AUTHORITY, LAHORE and 2 others

Labour Appeal No.75 of 2005, decided on 30th October, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 47(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Ss.1(4) & 2(i) & S.O.15---Removal from service---Appeal---Appellant, who was found receiving illegal gratification in respect of clearing a plot, was charge-sheeted under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 and after having been found guilty in inquiry, was removed from service---Appellant filed grievance petition contending that he being `workman', West Pakistan, Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was applicable to him and that action against him could not have been taken under the Punjab. Civil Servants Efficiency and Discipline Rules, 1999---Labour Court dismissed grievance petition of appellant holding same to be without merits---Validity---West Pakistan Industrial and Commercial Employment (Standing. Orders) Ordinance, 1968 was applicable to appellant, but initiation of action against appellant under Efficiency and Discipline Rules., 1999; had caused no prejudice to the case of appellant---Both the provisions of Punjab Civil Servants Efficiency and Discipline Rules, 1999 as well as under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 had provided a charge-sheet, holding of inquiry and thereafter a penal action against the employee, if allegations of the charge sheet were found correct---Forum, under both the enactments, for redressal of grievance, pertaining to action was the Labour Court---Forum and procedure in both the provisions of law were the same---No prejudice, in circumstances, was caused to appellant if wrong provision of law had been ascribed---Action against appellant could not be set at naught merely because a wrong provision of law was quoted---Appellant was heard, he was issued a charge-sheet, which was replied by the appellant and in the course of inquiry, appellant had participated in the proceedings---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1958, did not provide for a second show-cause notice or a personal hearing subsequent do the inquiry---Recommendation of Inquiry Officer for higher punishment of removal from service was awarded to appellant providing an opportunity of hearing to him---Appellant could not escape from his liability merely by saying that action was initiated against him at the desire of~ Military Inspection Team---No illegality or infirmity having been found in the impugned order, appeal having no merits, was dismissed.

Muhammad Yousaf v. Labour Appellate Tribunal 1987 PLC 430; Muhammad Younus v. Secretary, Ministry of Communications and others 1993 SCMR 122; Altaf Hussain v. D.W. & C.E. (Army) QMG's Branch G.H.Q. Rawalpindi and others PLC 1990 (C.S.) 40; Lahore Development Authority and others v. Abdul Shafiq and others 1992 PLC 121.4 and Dawood Cotton Mills Ltd. v. Guftar Shah and another PLD 1981 SC 225 ref.

Inspector-General of Police v. Shafqat Mehmood 2003 PLC (C.S.) 7 and Government of the Punjab v. Rao Shamsher Ali Khan and others 1987 SCMR 224 rel.

Sh. Abdul Hameed for Appellant.

Ghazi M.A. Rashid for Respondent.

Date of hearing: 15th September, 2006.

PLCCS 2007 LAHORE HIGH COURT LAHORE 608 #

2007 P L C 608

[Lahore High Court]

Before Syed Hamid Ali Shah, J

TEHSIL NAZIM, TEHSIL MUNICIPAL ADMINISTRATION, OKARA

Versus

ABBAS ALI and another

Writ Petitions No.9356, 9360 and 9362 of 2005, decided on 28th February, 2007.

Payment of Wages Act (IV of 1936)---

----Ss. 15(2) & 17(1)(a)---West Pakistan Industrial and Commercial Employment (Standing-Orders) Ordinance (VI of 1968), S.2(bb)---Punjab Local Government Ordinance (XIII of 2001), 5.54---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Claim of amount regarding retirement benefits, gratuity and overtime, etc.---Applications of respondents filed under S.15(2) of Payment of Wages Act, 1936 for payment of amount regarding retirement benefits and overtime etc., were accepted by Authority, under Payment of Wages Act, 1936 and appeal against order of Authority having been dismissed by the Labour Court, petitioner/Tehsil Nazim had filed constitutional petition---Petitioner had contended that respondents being the employees of Tehsil Municipal Administration; being not workmen, their claim before Authority under Payment of Wages Act, 1936 was not maintainable---Petitioner had alleged. that orders of Authority and of Labour Court being without jurisdiction, were void and could be assailed in constitutional petition, even without availing the remedy of appeal or other alternative remedy---Petitioner had questioned the jurisdiction of Authority under Payment of Wages Act, 1936, on the ground that Tehsil Municipal Administration was not Factory and manufacturing process as contemplated in provisions of Payment of Wages Act, 1936---Validity---Comparing the functions of Tehsil Administration as envisaged under S.54 of Punjab Local Government Ordinance, 2001 with definition of `construction Industry' as provided in S.2(bb) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 it would become clear that functions of Tehsil Municipal Administration, were of the nature that Tehsil Municipal Administration, fell within the definition of construction industry'---Jurisdiction of Authority under Payment of Wages Act, 1936, in circumstances, would extend to employees of Tehsil Municipal Administration and they could validly maintain their claim before said Authority---Outstanding claims of employees were not disputed by the petitioner, but were admitted before Authority under Payment of Wages Act, 1936 and question of jurisdiction which had been urged by the petitioner in constitutional petition, was never raised before two fora below---Constitutional petition was dismissed.

Town Committee Ghakharmandi v. Authority under Payment of Wages Act, Gujranwala and 57 others PLD 2002 SC 452; Syed Match Company Ltd. v. Authority under Payment of Wages Act and others 2003 SCMR 1493; Mughal Surgical (Pvt.) Ltd. and others v. Presiding Officer, Punjab Labour Court No.7 and others 2006 SCMR 590; Haji Sheikh Noor Din and Sons v. Muhammad Fayyaz and 2 others 2006 PLC 623; Tehsil Municipal Administration Faisalabad v. Muhammad Saleem and others PLD 2006 SC 166; Agriculture Workers Union Balochistan v. The Registrar of Trade Union and others 1997 SCMR 66 and Lahore 'Development .Authority v. Shafique and others PLD 2000 SC 207 ref.

Ch. Riyasat Ali for Petitioner.

Syed Hamad Raza Naqvi for Respondent No.1.

Muhammad Hayat Klasson for Respondent (in Writ Petition No.9362 of 2005).

Date of hearing: 16th January, 2007.

PLCCS 2007 LAHORE HIGH COURT LAHORE 614 #

2007 P L C (C.S.) 614

[Lahore High Court]

Before Tariq Shamim, J

MUHAMMAD YAQOOB ALI TABASSUM and another

Versus

CHAIRMAN PRIVATIZATION COMMISSION, ISLAMABAD and 2 others

Writ Petition No.10692 of 2006, decided on 12th March, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Laches---Past and closed transaction, principle of---Applicability---Petitioners worked under respondents and were relieved from their service on 28-2-1997 by accepting the benefits of Voluntary Separation Scheme 1+2---Payments were voluntarily accepted by petitioners without raising any protest---At the relevant time no understanding was extended by respondents that in case a new Scheme was introduced the petitioners would be given benefits of new Scheme---Grievance of petitioners was that subsequent to their release, Golden Hand Shake Scheme 1+4 was introduced under different circumstances which was not made applicable to petitioners----Validity---After having accepted payment under Voluntary Separation Scheme 1+2, the petitioners could not wriggle out from the situation as the Scheme had been acted upon---Principle of past and closed transaction was fully attracted---Petitioners approached High Court after a lapse of 9-1/2 years, therefore, petition was liable to be dismissed on the principle of laches---Petition was dismissed in circumstances.

Miani's case PLD 1973 SC 17 and Khalil Khan v. Haji Nazir Ahmad and 4 others PLD 1997 SC 304 ref.

Ch. Muhammad Saleh Naru for Petitioners.

Muhammad Rafiq Shad for Respondents.

PLCCS 2007 LAHORE HIGH COURT LAHORE 640 #

2007 PLC (C.S.) 640

[Lahore High Court]

Before Mian Hamid Farooq and Iqbal Hameed-ur-Rehman, JJ

AFIFA ARSHAD

Versus

D.E.O. and others

I.C.A. No.73 of 2006 in Writ Petition No.412 of 1999, decided on 20th February, 2007.

Civil service---

----Appointment---Act of authorities---Appointment letter, non-receipt of---Appellant was appointed as Elementary English Teacher but concerned authority failed to certify validity of the appointment order---Appointment order was never conveyed to appointee consequently she neither joined service at any school nor performed her duties at any time---Effect---Once appointee was qualified to be appointed, his/her services could not be subsequently terminated on the basis of lapses and irregularities committed by department itself---Irregularities having been committed in process of appointment by the officials of department, therefore, appointee could not be made to suffer for such illegalities and irregularities---Authorities were directed by the High Court to allow the appointee to join her duty---Intra-court appeal was allowed accordingly.

Secretary to Government of N.-W.I.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413 and Muhammad Zahid Iqbal and others v. DEO Mardan and others 2006 SCMR 285 rel.

Ch. Abdul Sattar Goraya for Appellant.

Mughees Aslam Malik for Respondent No.2.

Zafarullah Khan Khakwani, A.A.-G.

Capt. (Retd.) Zahid Saeed Special Secretary Education, Government of the Punjab, Lahore, Mrs. Shahida Anwar, D.E.O.(W)/Respondent No.1 and Mrs. Samina Zafar Ex-Deputy D.E.O.(W) Shujabad/Inquiry Officer.

PLCCS 2007 LAHORE HIGH COURT LAHORE 669 #

2007 P L C (C.S.) 669

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD ASHRAF

Versus

GOVERNMENT OF PAKISTAN through Secretary Establishment, Government of Pakistan and another

Writ Petition No.11 of 2007, heard on 19th March, 2007.

(a) ESTACODE (1997 Edition)---

----Sl. No.172-A--- Civil service--- Promotion--- Guidelines---Quantification formula indicates that even, officers upon whom major penalty has been imposed or adverse Annual Confidential Reports are recorded, do not become outcast for the purpose of promotion---Quantification formula is intended to structure discretion of Selection Board to ensure just and fair treatment to contenders for promotion.

(b) Civil Servants Act (LXXI of 1973)---

----S. 9---ESTACODE (1997 Edition), Sl. No.172-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion---Non-consideration---Intelligence report---Effect---Grievance of petitioner was that his name was not considered for promotion just because of some intelligence report---Validity---Report from intelligence department with respect to a Government servant touching upon his integrity and work stood at inferior position as invariably it was written by a person of the lowest rank who could not have a perception, which an immediate boss of civil servant might have---When Annual Confidential Reports of a civil servant were discarded the intelligence reports could not take their place absolutely and the same could lead to very dangerous results---At the most an overall picture could be drawn based on statements of Annual Confidential Reports and intelligence reports---Non-consideration of Annual Confidential Reports of a civil servant by Selection Board on the basis of adverse intelligence reports regarding his integrity without asking his explanation would mean that Board had not ascertained from entire material as to what was the integrity of a civil servant for the purpose of consideration of' his promotion cases, nor the Board had determined as to who was the author of the report---Decision of competent authority superseding the petitioner was held to be without lawful authority by High Court and was set aside---High Court remanded the promotion case of petitioner to Central Selection Board for decision afresh---Petition was allowed accordingly.

Muhammad Zafeer Abbasi's case 2003 PLC (C.S.) 503; Muhammad Farooq Chauhan v. Province of Punjab PLD 1987 SC 271; Muhammad Akbar Khan v. Federation of Pakistan 2006 PLC (C.S.) 619 and C.Ps. Nos.215-K to 217-K of 2006 ref.

----S. 9---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition--- Maintainability---Non-consideration for promotion---Intelligence reports---Terms and conditions of service---Central Selection Board on the basis of adverse intelligence reports, did not consider the case of petitioner for promotion---Plea raised by authorities was that it was a matter pertaining to terms and conditions of service---Validity---Selection Board did not apply its proper judicious mind to the case of petitioner, which was not covered within the terms and conditions of civil servant---Appeal was not competent before Service Tribunal against the decision/order of departmental authorities, determining fitness or otherwise of officer for promotion to higher post---Constitutional petition, held, was maintainable in circumstances.

Shafi Muhammad Mughal v. Secretary Establishment Division and others 2001 SCMR 1446 ref.

Masood Ashraf Sheikh for Petitioner.

Zafar Iqbal Ch. D.A.-G. with Mehboob Alam Deputy Secretary, Establishment Division for Respondents.

Date of hearing; 19th March, 2007.

PLCCS 2007 LAHORE HIGH COURT LAHORE 675 #

2007 P L C (C.S.) 675

[Lahore High Court]

Before Muhammad Jehangir Arshad, J

SANA ULLAH

Versus

GOVERNMENT OF PUNJAB through Secretary, Livestock and Dairy Development Department, Lahore and 2 others

Writ Petitions Nos.4106, 4214, 4679, 4301, 4235, 4233, 4231, 4149, 4107, 4183, 4181, 4167, 4234, 4232, 4182, 4192, 4168, 4150, 4148 of 2006 and 622 of 2007, decided on 14th March, 2007.

(a) Constitution of Pakistan (1973)---

----Arts. 25 & 199---Constitutional petition---Equality of citizens---Contractual employees---Removal from service on the ground that their appointments were not made in accordance with laid down policy/merit---Validity---Petitioners were not alleged to be ineligible for appointment or that their appointments were not made by competent authority---No action had been taken against persons responsible for making such appointments---No allegation against petitioners that they were privy to alleged violation of laid down policy or had procured appointments by misrepresentation, fraud etc.---Petitioners belonging to BS-1 to BS-4 had been penalized only, while appointments above BS-4 had been kept intact without disclosing any reason therefor---Such discrimination amounting to violation of Art.25 of the Constitution could not be graced with approval---Petitioners' appointments had been annulled in a sweeping manner without notice and affording them opportunity of hearing---High Court declared impugned orders as without lawful authority with observations that petitioners performing duties would be paid their due salary.

Collector Customs and Central Excise Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303=2004 PLC (C.S.) 301; Muhammad Shoaib and 2 others v. Government of N.-W.F.P. through The Collector, D.I. Khan and others 2005 SCMR 85 and Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158 rel.

(b) Constitution of Pakistan (1973)---

----Arts. 199 & 212---Contractual employee, constitutional petition by---Maintainability---Article 212 of the Constitution would not hit such petition.

Petitioners in person.

Mubashir Latif Gill, Asstt. Advocate-General with Muhammad Sharif, Section Officer, L&DD, Lahore and Mohabat Alam, Director Punjab Small Ruminants, Multan.

PLCCS 2007 LAHORE HIGH COURT LAHORE 691 #

2007 P L C (C.S.) 691

[Lahore High Court]

Before Umar Ata Bandial, J

Ch. HAIDER ALI

Versus

DIRECTOR ADMINISTRATION, WASA

Writ Petition No.9795 of 2006, decided on 7th November, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Pendency of criminal proceedings against civil servant---Withholding of pension and gratuity---Criminal proceedings were pending against petitioner for the last 10 years and pension and gratuity of petitioner were being withheld on account of pendency of said criminal proceedings; though Departmental proceedings in respect of the same charge were dropped against petitioner---Validity---Law did not contemplate a retired government servant to be deprived of his retirement benefits endlessly---Department had concluded its own proceedings against petitioner. in his favour---Department ought to have brought such finding on the record of the Special Judge Anti-Corruption before whom prosecution was under adjudication for last 10 years---Punjab Civil Servants Pension Rules, 1963 were silent with respect to consequence of a pending third party prosecution of a retired civil servant to receive pensionary dues---Proceedings being pending against civil servant before Judge Anti-Corruption, no direction was issued by the department in that regard--Petitioner, however, would be at liberty to approach High Court after four months, if by such time, Authority, who was so directed, would not co-operate to get criminal case against petitioner concluded in accordance with law.

Muhammad Akram Javed for Petitioner.

PLCCS 2007 LAHORE HIGH COURT LAHORE 710 #

2007 P L C (C.S.) 710

[Lahore High Court]

Before Syed Sakhi Hussain Bokhari, M. Bilal Khan and Syed Hamid Ali Shah, JJ

MUJAHID HUSSAIN SHEIKH

Versus

REGISTRAR, LAHORE HIGH COURT

S.A. No.78 of 2001, heard on 30th March, 2007.

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, R. 4(b)(iv)---Dismissal from service---Appellant, a civil servant, was dismissed from service after conducting inquiry against him on allegation that he had received huge amount of illegal gratification from private parties in number of cases---Enquiry report having maintained said allegations against appellant, same stood proved---Inquiry Officer, however, opted for imposition of minor penalty in terms of R.4(a)(ii)&(iii) of Punjab Civil Servants (Efficiency and Discipline), Rules, 1999---Authority did not agree with opinion of Inquiry Officer and dismissed appellant from service after affording him opportunity of personal hearing---Validity---Service record of appellant was throughout unblemished and no adverse entry was found in his present as well as in previous ACRs---Appellant had reached the age of superannuation that is why Inquiry Officer opted minor penalty---Keeping in view that appellant had already retired from service and that quantum of punishment was excessive/harsh, order of dismissal of appellant from service, was modified to that of compulsory retirement as prayed by the appellant.

Fida Muhammad Khan v. Water and Power Development Authority through Chairman, WAPDA, Lahore and another 1996 PLC (C.S.) 1103 and Water and Power Development Authority through Chairman, WAPDA, Lahore and another v. Fida Muhammad Khan 1996 PLC (C.S.) 7000 rel.

Mian Bilal Bashir for Appellant.

Nayyar Iqbal Ghouri for Respondent.

Date of hearing: 30th March, 2007.

PLCCS 2007 LAHORE HIGH COURT LAHORE 725 #

2007 P L C (C.S.) 725

[Lahore High Court]

Before Umar Ata Bandial, J

RAZA MUHAMMAD

Versus

DISTRICT POLICE OFFICER, MIANWALI

Writ Petition No.17704 of 2005, decided on 22nd January, 2007.

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3 & 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Exoneration or mere issuance of warning in earlier proceedings---Issuance of fresh show-cause notice in the same case---Petitioner was issued notice by the Authority under Punjab Removal from Service (Special Powers) Ordinance, 2000, whereupon after conduct of inquiry, petitioner was not awarded any punishment, but was merely issued a warning---Subsequently, Authority issued a fresh show-cause notice to petitioner on the same facts and under the same law threatening him with the imposition of major penalty---Such fresh show-cause notice had been attacked by petitioner in his petition on the basis of maxim that no person would be vexed twice for one and same cause---Previous proceedings having ended in the issuance of warning to petitioner, subsequent proceedings launched against him by issuing fresh show cause-notice on same facts and law, were violative of maxim relied upon by petitioner and were liable to be annulled---Further disciplinary proceedings against petitioner, being oppressive were declared to be illegal and without lawful authority.

Director-General (Field) Agriculture Department v. Haji Abdur Rehman 1989 SCMR 1224 and Abdur Razzaq Malik v. WAPDA PLD 1973 Lah. 188 rel.

Muhammad Zubair Saeed Awan for Petitioner.

Fawad Malik, A.A.-G. and Amir Muhammad, A.S.-I. with Record.

PLCCS 2007 LAHORE HIGH COURT LAHORE 751 #

2007 P L C (C.S.) 751

[Lahore High Court]

Before Sardar Muhammad Aslam, J

RIZWAN AKHTAR

Versus

UNIVERSITY OF THE PUNJAB through Vice-Chancellor and 4 others

Writ Petition No.4492 of 2006, decided on 10th April, 2007.

(a) Punjab University Employees (Efficiency and Discipline) Rules, 1975---

----Rr. 4, 5 & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition--Maintainability--Termination of service---Misconduct, charge of---Dismissal of departmental appeal by Appellate Authority---Constitutional petition by employee alleging such termination to be in violation of Punjab University 'Employees (Efficiency and Discipline) Rules, 1975---Maintainability---Employee was governed by non-statutory rules, thus, its violation would not be amendable to constitutional jurisdiction of High Court---Constitutional petition for being not competent on the subject was dismissed in circumstances.

Muhammad Shoaib Roomi v. Secretary/Additional Secretary, Education Department Government of Punjab and others 2005 SCMR 605; University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093; M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division Government of Pakistan Islamabad and 2 others 1994 SCMR 1024.; Ch. Abdul Rashid v. Capital Development Authority, Islamabad and another PLD 1979 Lah. 803; Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170; Lahore Central Cooperative Bank Limited v. Saif Ullah Shah PLD 1959 SC (Pak.) 210 and Chairman, Pakistan Council of Scientific and Industrial Research, Islamabad and 3 others v. Dr. Mrs. Khalida Razi (Civil Appeal No.270 of 1993) ref.

(b) Constitution of Pakistan (1973)---

----Art. 199--Constitutional jurisdiction---Scope---Non-statutory rules, violation of---Not amenable to constitutional jurisdiction of High Court---Principles.

Muhammad Shoaib Roomi v. Secretary/Additional Secretary, Education Department Government of Punjab and others 2005 SCMR 605; University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093; M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division Government of Pakistan Islamabad and 2 others 1994 SCMR 1024; Ch. Abdul Rashid v. Capital Development Authority, Islamabad and another PLD 1979 Lah. 803; Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170; Lahore Central Cooperative Bank Limited v. Saif Ullah Shah PLD 1959 SC (Pak.) 210 and Chairman, Pakistan Council of Scientific and Industrial Research, Islamabad and 3 others v. Dr. Mrs. Khalida Razi (Civil Appeal No.270 of 1993) ref.

Asmat Kamal Khan for Petitioner.

Muhammad Arif Raja, Legal Advisor for Respondents.

PLCCS 2007 LAHORE HIGH COURT LAHORE 758 #

2007 P L C (C.S.) 758

[Lahore High Court]

Before Muhammad Muzammal Khan, J

ZULQARNAIN KHAN

Versus

GOVERNMENT OF PUNJAB, WELFARE DEPARTMENT through Additional Chief Secretary, Government of the Punjab, Lahore and 2 others

Writ Petition No.14003 of 2005, decided on 9th February, 2007.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition-Imposition of penal rent---Possession under restraint order---Possession under restraint order not unlawful-Petitioner, a retired civil servant continued possession over official accommodation under injunctive order passed by High Court in constitutional jurisdiction---Constitutional petition disposed of and vacant possession of premises was handed over to the Department as per direction of the Court---Department stopped pension of petitioner to charge penal rent for petitioner's alleged unlawful occupation during pendency of stay order---Validity---Petitioner was permitted by High Court to continue with possession of Government residence under a restraint order---Stay granted in favour of petitioner was not vacated at any stage during proceedings even constitutional petition was disposed of on petitioner's own concession to vacate premises within a period of 3 months---Possession of petitioner over official accommodation in his occupation never became unauthorized or illegal, Department, in circumstances, could not deduct/adjust any penal rent under its policy.

Sheikh Lutaf-ur-Rehman v. Government of the Punjab and others Writ Petition No.20833 of 1999 ref.

(b) Words and phrases---

----"Illegal"---Meaning---Dictionary/literal meaning of illegal is unlawful.

Malik Saleem Chaudhary for Petitioner.

Ch. Muhammad Sadiq, Addl. A.-G. with Khadim Hussain S.O. Litigation Welfare Wing for Respondents.

PLCCS 2007 LAHORE HIGH COURT LAHORE 792 #

2007 P L C (C.S.) 792

[Lahore High Court]

Before Umar Ata Bandial, J

Malik ANWARUL HAQ

Versus

EVACUEE TRUST PROPERTY BOARD and others

Writ Petition No.8832 of 2006, decided on 6th February, 2007.

Evacuee Trust Property Board Recruitment and Service Regulations, 1984---

----Regln. 3---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Locus poenitentiae, principle of---Applicability---Petitioner was provisionally promoted to the higher post, as there was ban on promotion---Promotion under Regln. 3 of Recruitment and Service Regulations of Evacuee Trust Property Board, 1984, could only be made 50% by promotion and 50% by initial appointment, therefore, provisional promotion granted to petitioner was recalled---Plea raised by petitioner was that on the basis of principle of locus poenitentiae, provisional promotion could not have been recalled by the authorities---Validity---Reservation made in Recruitment and Service Regulations of Evacuee Trust Property Board, 1984 merited compliance unless valid grounds existed to promote the object of law and were in public interest---Ordinarily facts of an individual case would not suffice to displace such a seat reservation formula---Neither conditional terms of provisional promotion order nor existence of ban on promotion could serve as sufficient grounds to ignore reservation made in Recruitment and Service Regulations of Evacuee Trust Property Board, 1984---Fact that order of provisional promotion was acted upon created consequences---Satisfactory work done by petitioner for longer than four years in the promoted post had given rise to a legitimate expectation in the petitioner to retain his rank apart from imposing 'a bar of locus poenitentiae on the authorities because that provisional promotion order was issued by competent authority-High Court directed that Departmental Promotion Committee of authorities would, at the earliest possible, take up for consideration the case of petitioner for promotion on merits---High Court further directed that such exercise would be accomplished within eight weeks, failing which, the petitioner might approach the court to rule on his plea of locus poenitentiae and legitimate expectations in accordance with law---Petition was disposed of accordingly.

Muhammad Mubeen v. Salam and others v. Federation of Pakistan PLD 2006 SC 602 ref.

Hafiz Tariq Naseem and Mahmood Ahmad Qazi for Petitioner.

Shaukat Umar Pirzada for Respondent No.1.

Asad Munir, Deputy Attorney-General.

PLCCS 2007 LAHORE HIGH COURT LAHORE 811 #

2007 P L C (C.S.) 811

[Lahore High Court]

Before Umar Ata Bandial, J

ABDUL WAHAB AWAN

Versus

GOVERNMENT OF PAKISTAN

Writ Petition No.9768 of 2006, decided on 17th October, 2006.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Promotion---Supersession---Malice---Petitioner was declined promotion to grade 21 by Central Selection Board on 31-7-2006---Minutes of Board meeting indicated that an untrue statement about pendency of NAB inquiry against petitioner constituted one of two considerations for supersession---National Accountability Bureau inquiry against petitioner had though been dropped and Authority was informed about closure of said inquiry by NAB's letter dated 16-5-2006, nevertheless petitioner's penal pro forma forwarded to the Board was not corrected---Factual explanation given in para-wise comments filed by Authority that NAB's letter which was seen and initialed by him was erroneously placed in a file kept in a branch altogether different from the one dealing with the petitioner's promotion case was, found to be unsatisfactory---Such explanation admits a serious lapse in the performance of official duties by the functionaries---Huge but false stigma of corruption inquiry was allowed to undermine the petitioner's prospects for promotion in his career---Such treatment was callous; it led to unfairness and caused resentment and a sense of injustice in the victim---Such was the reason that the petitioner alleged malice---Although negligence and indifference in the discharge of official function might have led to the same consequences as malice, but the latter could not be presumed to infect the Authority's actions---No animus was visible from the present record and, therefore, the allegation of malice levelled in the petition was rejected---Allegation of absence of authority in the matter of fitness for promotion matter was subject to judicial scrutiny---Petitioner had suffered on account of a false representation about his service record before the Board that had side tracked his case for promotion to the next grade which he might have expected as a crowning milestone at the fag-end of his career---Impugned decision of supersession of petitioner by Board was declared by the High Court to be contrary to record, illegal and without lawful authority, therefore was set aside holding that the injustice worked in present case needs to be corrected in order that law may take its course.

Dr. Ahmed Salman Waris v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382 ref.

(b) Constitution of Pakistan (1973)---

----Arts. 199 & 212---Service Tribunals Act (LXXI of 1973), S.4(1)(b)---Constitutional petition under Art.199 of the Constitution---Maintainability---Promotion---Bar of Article 212 of the Constitution---Applicability---Section 4(l)(b) of Service Tribunals Act, 1973 excludes from the, Tribunal's scrutiny matters about the fitness of a government servant to be promoted to a higher grade---Bar under Art.212 of the Constitution does not apply to promotion matters falling under S.4(1)(b) of the Service Tribunals Act, 1973.

----Arts.199 & 212---Service Tribunals Act (LXXI of 1973), S.4(1)(b)---Constitutional petition--Maintainability--Civil service--Promotion---Constitutional jurisdiction of High Court can be exercised to correct the injustice done in a fitness for promotion case.

Government of Pakistan and others v. Iqbal Ahmad Khan Matiur Rehman and another C.Ps. Nos.215-K to 217-K and Muhammad Zaffer Abbasi v. Government of Pakistan 2003 PLC (C.S.) 503 ref.

Hafiz Tariq Nasim for Petitioner.

Danishwar Malik, Deputy Attorney-General.

Irfan Mahmood Sheikh for Respondent No.2./Legal Advisor Pakistan Railway.

PLCCS 2007 LAHORE HIGH COURT LAHORE 889 #

2007 P L C (C.S.) 889

[Lahore High Court]

Before Fazal-e-Miran Chauhan, J

Mst. SOBIA NAWAB

Versus

DIRECTOR-GENERAL, POPULATION WELFARE DEPARTMENT, GOVERNMENT OF PUNJAB and 5 others

Writ Petition No.6517 of 2006, decided on 17th May, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil Service---Recruitment---Selection Committee---Powers---Petitioner applied for the post of FWA (female) but was not Selected---Grievance of petitioner was that result prepared by Selection Committee was based upon male fide---Validity---Petitioner was interviewed by Selection Committee and was given certain marks but she could not secure enough marks to be selected---Authority of Selection Committee could not be challenged and questioned because of the fact that. Selection Committee was the best judge at the given time to form an opinion and take decision after judging the ability of candidates---Courts should not interfere and thrust their opinion subsequently changing the verdict of Selection Committee except when it had been made on considerations other than the capability of petitioner or smacked of male fide---High Court declined to interfere with the result prepared by Selection Committee---Petition was dismissed in circumstances.

Ch. Jamil Ahmed Sindhu for Petitioner.

Faisal Ali Qazi, Asstt. A.-G. Punjab along with Faiza Rashid, Director-General Population for Respondents Nos. 1 and 2.

Nemo for Respondents Nos.3 to 6.

PLCCS 2007 LAHORE HIGH COURT LAHORE 896 #

2007 P L C (C.S.) 896

[Lahore High Court]

Before Sh. Hakim Ali, J

MUHAMMAD SAEED

Versus

DISTRICT COORDINATION OFFICER; BAHAWALPUR and others

Writ Petition No.3945 of 2004BWP, decided on 29th May, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment---Adjustment in other department---Repatriation---Petitioner initially was appointed as Naib-Tehsildar in Directorate of Housing and Physical Planning; on abolition of said Department he was adjusted in Revenue Department as Additional Naib-Tehsildar against a vacant post---Subsequently when parent department of petitioner was revived, he was repatriated to said department---Petitioner aggrieved from said order of repatriation had filed constitutional petition against said order---Validity---Petitioner was adjusted against a vacant post in Revenue Department on abolition of his parent department; but was not absorbed in Revenue Department---Government servants of Revenue Department were governed by Punjab Revenue Department (Revenue Administration Posts) Rules, 1990, which had provided a procedure, method and manner for recruitment of Naib-Tehsildar---No other rules or provision of law existed which could authorize District Co-ordination Officer or other high-ups of Revenue Department to violate said Rules---District Government Rules of Business, 2001 could not be invoked to change the specific and particular method and character---Petitioner was being repatriated to his parent department, which he had himself chosen for his service at the inception for which he should not hesitate to accept.

Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Chairman, Minimum Wage Board, Peshawar and another v. Fayyaz Khan Khattak 1999 SCMR 1004; Syed Fazal-e-Mahboob v. Secretary, Establishment Division, Government of Pakistan, Islamabad 2000 SCMR 489 and Muhammad Shoib and 2 others v. Government of N.-W.F.P. through the Collector D.I. Khan and others 2005 SCMR 85 ref.

Shamsheer Iqbal Chughtai for Petitioner.

Ch. Shafi Muhammad Tariq, A.A.-G. Asghar Majeed, Litigation Officer.

PLCCS 2007 LAHORE HIGH COURT LAHORE 912 #

2007 P L C (C.S.) 912

[Lahore High Court]

Before Muhammad Sayeed Akhtar, J

MUHAMMAD AJLAL KHAN

Versus

DIRECTOR, PROGRAMME, CIVIL SERVICES ACADEMY, LAHORE and 6 others

Writ Petition No.18092 of 2005, heard on 25th May, 2007.

Competitive Examination Regulations, 2004---

----Reglns. 9 & 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Medical examination of candidate---Report of Central Medical Board showing petitioner overweight by 25 Kgs.---Public Service .Commission declared petitioner unfit due to gaining weight and severe obesity---Validity---Nothing on record to show that overweight was a physical defect likely to interfere with discharge of duties of petitioner or whether or not such defect was likely to interfere with efficient performance of his duties---Nothing on record to show that such defect was remediable or not---High Court directed Board to examine petitioner and record its opinion in terms of Regln. No.24 of Competitive Examination Regulation, 2004.

2003 PLC (C.S.) 1161 rel.

Sh. Shahid Waheed for Petitioner.

M. Asad Munir, D.A.-G. with Asim Akram for Respondent No.4.

Date of hearing: 25th May; 2007.

PLCCS 2007 LAHORE HIGH COURT LAHORE 924 #

2007 P L C (C.S.) 924

[Lahore High Court]

Before Iqbal Hameedur Rahman, J

ASAD ALI ALVI

Versus

SECRETARY, GOVERNMENT OF PUNJAB, IRRIGATION AND POWER DEPARTMENT, LAHORE and 8 others

Writ Petition No.562.of 2007, heard on 15th May, 2007.

Constitution of Pakistan (1973)---

---Art. 199---Constitutional petition---Civil service---Recovery of alleged excess salary/allowance from petitioner---Petitioner was awarded promotion on the recommendation of Departmental Promotion Committee and he was appointed as officiating Circle Superintendent and he worked on that post and performed his duties honestly---If proceedings of the Departmental Promotion Committee were defective or there was any irregularity committed by the Department, petitioner could not be held responsible for the same---Recovery of amount paid on basis of incorrect order and received by the petitioner on a bona fide belief that he was entitled to it, authorities were not entitled to recover same from him during the period when alleged incorrect order remained in field and principle of locus poenitentiae would be applicable in the case---No one could be deprived of his salary for the work which had been done by him---Salaries of the employees could not be withheld on the ground that their appointment was illegal being made in violation of relevant rules---Accepting petition, impugned letter regarding recovery of alleged excess salary/allowance, was set aside by the High Court and authorities were directed to release the pensionary benefits with all other, emoluments to petitioner within one month.

Administrator, District Council, Larkana and another v. Ghulab Khan and 5 others 2001 SCMR 1320; Zafar Mahmood Malik v. Water Management Specialist and 5 others 2005 PLC (C.S.) 4; Nisar Ahmad anal others v. Town Committee, Khairpur Tamewali through Administrator 2004 PLC (C.S.) 382; Khalid Parveen v. D.E.O. (Female) Secondary, Karak and others 2003 PLC (C.S.) 1376; Shaukat Ali v. District Government through Nazim/Chairman Selection Committee and 4 others 2005 PLC (C.S.) 790; The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalal Uddin PLD 1992 SC 207 rel.

Ghulam Murtaza Malik for Petitioner.

Muhammad Qasim Khan Asstt. A.-G., Muhammad Shafi Admn. Officer for Respondents Nos.2 to 6.

Muzaffar Ahmad, Admin. Officer for Respondent No.3.

Ishfaq Ahmad Bhutta Superintendent for Respondent No.4.

Date of hearing: 15th May, 2007.

PLCCS 2007 LAHORE HIGH COURT LAHORE 991 #

2007 P L C (C.S.) 991

[Lahore High Court]

Before Sh. Hakim Ali, J

Rao ABDUL HANAN KHAN

Versus

DISTRICT OFFICER (COOR'DINATION) DISTRICT BAHAWALNAGAR and others

Writ Petition No.138 of 2006/BWP, decided on 21st March, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment---Petitioner had challenged order passed by Authority, by which another person was appointed against the post of Naib Qasid, alleging that he was involved in a criminal case, was remanded to judicial prison and at the time of interview he was not present, his appointment order and recommendation thus could not be made by concerned officer or department---Said person admittedly was in jail at the time of interview for said post---Appointment order could not be made in circumstances---Said person was given another chance and was asked to join service, but he had not joined same .within the prescribed period---Right to be appointed or to remain on said post, was rightly withdrawn---By accepting constitutional petition, impugned order was declared illegal and unlawful---Directions were issued to the authorities to issue appointment letter in favour of petitioner for said post.

Gulzar Ahmad Khan for Petitioner.

Mian Noor Ali Wattoo for Respondent No.4.

Ch. Shafi Muhammad Tariq, A.A.-G. along with Muhammad Ashraf, Junior Clerk on behalf of Respondent No.3.

PLCCS 2007 LAHORE HIGH COURT LAHORE 1035 #

2007 P L C (C.S.) 1035

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

Dr. ANJUM SYED

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman, Islamabad and 3 others

F.A.O. No.153 of 2002, decided on 15sth June, 2006.

(a) Civil Servants Act (LXXI of 1973)---

----S. 5---Service Tribunals Act (LXX of 1973), S.4---Appointment---Appeal---Appellant being an Assistant Professor, had applied for appointment of Professor in response to an advertisement in her subject---Appellant fulfilled the basic and additional qualifications, but she was dropped by Federal Public Service Commission on the ground that she lacked nine years teaching experience as an Associate Professor in under-graduate institution and total experience as Assistant Professor/Associate Professor was less than twelve years in under-graduate institution---Qualification for appointment of Professor according to amended rules was "three years" teaching experience as an Associate Professor in the respective subjects, provided that the total experience as Assistant Professor shall not be less than eight years or nice years' teaching experience as an Assistant Professor in the respective subject"---Provision of total experience as Assistant/Associate Professor not less than twelve years in undergraduate institution was not the requirement of the rules; and it was in conflict with the condition of nine years' teaching experience as Assistant Professor---Appellant, a qualified Doctor, did her M. Phil in Physiology and was engaged in teaching as Assistant Professor since 1992, firstly in a Medical College and thereafter, she joined a Post-Graduate Medical Centre---Appellant was author of eleven publications in the relevant subject, published in Medical Journals recognized by Pakistan Medical and Dental Council---Principal of Medical College had issued experience certificate in favour of appellant--Held, appellant, who had the required qualifications and experience for the post of Professor, was entitled to be appointed on said post---Impugned orders, snider which appellant was dropped were set aside and appellant was 'declared eligible to apply for the post of Professor.

(b) Words and phrased---

----Word" or"---Interpretation---Word or' could be interpreted in order to give effect to the real intention of the Legislature---Ordinarily, the wordor' should be construed in disjunctive sense, unless the compulsion of context required otherwise---Court of law primarily had to adhere to the strict literal interpretation of the words used and the substitution of conjunctions should not be made without sufficient reason---If such adherence was destructive of the object of the enactment and would lead to anomalies and absurdities, it was fair to assume that the legislature did not use the words in that sense and in such a case the conversion of and' into the disjunctiveor' was permissible---Fundamental principle of construction was that the word used in a statute must be understood in the ordinary grammatical sense---If the ordinary grammatical meaning of a word resulted in creating absurdity or anomaly or rendering the legislation to no effect, the narrower or broader meaning could be given to the word---Word "or" though was normally used in disjunctive sense, but-the intention of the legislature could be to read or' and "and" one for the other when it had the significance and meanings equal to the wordand' implying conjunctive and not disjunctive reading---Word and' some time was to be read asor' in order to carry out the intention of the Legislature.

P v. R KLR 1993 Civil Cases 336; L.H. Sugar Factory, Pilibhit v. Moti AIR 1941 All. 243; The Food Inspector Trichur Municipality Trichur v. O.D. Paul and another AIR 1965 Kerala 96; Muhammad Sanaullah v. Allah Din 1993 MLD 399; M. Idrees v. The State 1990 PCr.LJ 665; Ishwar Singh Bindra and others v. State of U.P. AIR 1968 SC 1.450; Muhammad Arshad Khan v. J&P Coats Pakistan Ltd., Karachi and 2 others PLD 1977 Kar. 83 and Syed Yakub Shah v. The State PLD 1978 Quetta 158 ref.

Amjad Hameed Ghouri for Appellant.

Ch. Muhammad Tariq, D.A.-G. with Muhammad Khalil, Deputy Director, FPSC for Respondents.

Date of hearing: 15th June, 2006.

PLCCS 2007 LAHORE HIGH COURT LAHORE 1076 #

2007 P L C (C.S.) 1076

[Lahore High Court]

Before Mian Saqib Nisar, J

MUHAMMAD SHAHID ZAHEER

Versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division Islamabad and 7 others

Writ Petitions Nos.660 of 2004, 4129 of 2006 and 8155 of 2005, heard on 11th May, 2007.

Punjab Civil Servants Act (VIII of 1974)---

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Promotion--Respondents, who were junior to the petitioner, had been promoted, but petitioner was superseded despite he had unblemished 23 years' service record and no adverse remarks were on record About his competency, integrity or any other thing---No penalty had been imposed upon petitioner and no enquiry was pending against him under Government Servants (Efficiency and Discipline) Rules, 1973---Petitioner had been superseded in a "subjective manner"; it was not spelt out from record as to why and on the basis of what material, petitioner had been imputed with the "reputation of being corrupt" or that he did not .meet the required qualification for the promotion---Nothing on record could establish that any adverse remark was ever made in A.C.R, of petitioner about his integrity or ability; or there was any other material before the Committee on the basis of which such conclusion could be drawn---Department had also not been able- to establish that in view of blood count of petitioner, the policy guidelines for the .promotion, which were the seniority cum fitness, had been followed in petitioner's case, when tested at the touchstone of "objectivity"---High Court directed that petitioner's case be considered in the next forthcoming Central Selection Board and Board would consider the case independently of earlier three supersessions of petitioner---Constitutional petitions were allowed to the extent that case of petitioner should be considered in forthcoming meeting of the Board.

Muhammad Zafeer Abbasi, Deputy Secretary, Ministry of Kashmir Affairs and Northern Areas and Safron, Government of Pakistan, Pak. Secretariat,, Islamabad v. Government of Pakistan through Secretary Establishment Division (Cabinet Secretariat), Cabinet Block Constitution. Avenue, Islamabad 2003- PLC (C.S.) 503 and .Khan M. Muti-ur-Rehman and others v. Government of Pakistan through Secretary Ministry of Finance (Revenue Division), Islamabad and others 2006 PLC (C.S.) 564 ref.

Hafiz Tariq Nasim for Petitioner.

Tapir Mahmood Khokhar, Federal Counsel for Respondent No.1.

Muhammad Ilyas Khan for Respondent No.2.

Date of hearing: 11th May, 2007.

PLCCS 2007 LAHORE HIGH COURT LAHORE 1303 #

2007 P L C (C.S.) 1303

[Lahore High Court]

Before Syed Zahid Hussain, J

Dr. FARRAH ATTA

Versus

DISTRICT AND SESSSIONS JUDGE/CHAIRMAN, HUMAN RIGHTS, BHAKKAR and 3 others

Writ Petitions Nos.5846 and 6509 of 2007, heard on 5th September, 2007.

Constitution of Pakistan (1973)---

----Arts. 199, 175(2) & 212---Constitutional petition---Transfer and posting of petitioner (Medical Officer) in pursuance of order passed on respondent's application by District and Sessions Judge as Chairman, Human Rights-Validity-Courts would assume and exercise jurisdiction as conferred on them by Constitution or by or under any law---Matter in dispute related to terms and conditions of service of contesting parties---District and Sessions Judge had no jurisdiction to interfere. in such matter---Impugned order was without lawful authority and of no legal effect---Respondent might agitate such matter before departmental authority/proper forum---Time consumed in litigation would not stand in the way of proper forum in considering such matter strictly on merits---High Court dismissed constitutional petition in circumstances.

Judicial Review of Public Actions Vo. I, by Justice (R) Fazal Karim and Sindh Employees Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 rel.

Zafar Iqbal Chohaa for Petitioner.

Rizwan Mushtaq, Asstt. A.-G. Punjab with Dr. Muhammad Mushtaq Anwar-ul-Hassan Khan Niazi, S.M.O./Litigation Officer, Office of the E.D.O. (Health) Bhakkar and Malik Muhammad Anwar, Assistant, Health Department, Punjab, Lahore.

Mobeen-ud-Din Qazi for Respondent No.4. Date of hearing: 5th September, 2007.

Muhammad Khursheed, Labour Representative for Petitioners.

Faisal Mahmood Ghani for Respondents.

PLCCS 2007 NATIONAL INDUSTRIAL RELATIONS COMMISSION 628 #

2007 P L C 628

[National Industrial Relations Commission]

Before Justice (Rtd.) Tanvir Ahmed Khan, Chairman, Raja Abdullah Khan and Muhammad Shabbir Jamal Members

PAKISTAN TELECOMMUNICATION LIONS UNITY

Versus

RITU and others

Appeals Nos.12(5) of 2004 and 12(7) of 2004, decided on 26th October, 2005.

Industrial Relations Ordinance (XCI of 2002)---

----S. 20---Collective Bargaining Agent, determination of---Procedure as laid down in S.20 of Industrial Relations Ordinance, 2002 for determination of Collective Bargaining Agent, was not followed in preparing the list of .members---Even the total number of workers were not brought on record---Management informed the Deputy Registrar that the number of workers would be 70,000, if Engineering Supervisors and Daily Wagers were allowed to cast their votes; but referendum was got conducted with a list of 50,000 of regular employees without participation of Engineering Supervisors and Daily Wagers---Such act on the part of the Member of Commission had deprived Engineering Supervisors and Daily Wagers of their fundamental right to vote---Voters list was not prepared by comparing/verifying the list of members provided by the contesting. trade unions and the management---Incomplete list provided by the management was made basis for referendum---Management was only provided three days to submit the list of the workers and in that short span of time the Daily Wagers and Engineering Supervisors were totally excluded---Certificate of Collective Bargaining Agent was issued without noticing that the union did not secure/1/3rd votes of the workmen employed in the establishment as required under the law---Result of referendum was announced in hasty manner---High Courts, also took notice of said illegalities committed in holding of secret ballot and suspended Collective Bargaining Agent Certificate at the very preliminary hearing and ordered same to remain suspended till the matter was decided by the Bench---Referendum so held was thus without jurisdiction and was not conducted in accordance with provisions of Industrial Relations Ordinance, 2002---Same was set aside with a direction to Registrar Industry-wise Trade Union to hold referendum as per law within two months.

1989 MLD 3745; Town Committee, Gakhar Mandi v. Authority under the Payment of Wages. Act, Gujranwala and 57 others PLD 2002 SC 452; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.), 104; PLC 1964 C.S 536; PLD 2003 Pesh. 77; PLD 1994 Pesh. 48; 1979 PLC 416; PLD 1995 (sic) 53; .PLD 1971 Lah. 217; Karachi Warehouse and Carriers Workers Union v. Pakistan Warehouse Carriers Workers Union and 3 others PLD 1978 Kar. 417 and Manzoor Qadir v. Mst. Annul Hussain and others PLD 1971 Lah. 537 ref.

Raja Muhammad Ibrahim Satti for Appellant.

Tariq Mahmood Khan and Sheikh Abdul Hameed for Respondent.

S. Naeem Bokhari for-the P.T.C.L.

PLCCS 2007 NATIONAL INDUSTRIAL RELATIONS COMMISSION 640 #

2007 P L C 640

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member

MUJEEBUR REHMAN and 13 others

Versus

Messrs SHELL PAKISTAN LTD. through Managing Director and others

Case Nos.4A(79) of 2005/K, 24(93) of 2005/K, decided on 17th January, 2006.

National Industrial Relations Commission (Procedure and Functions) Regulations, 1973---

----Regln. 32(2)(c)---Industrial Relations Ordinance (XCI of 2002), Ss.45(2), 49(4)(e) & 50(3)(a)---West Pakistan Industrial Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.13---Interim order---Grant, clarification and confirmation of---Retrenchment---Unfair labour practice by employers---Petition against---Services of petitioners having been terminated by way of retrenchment, petitioners filed petitions under S.49(4)(e) of Industrial Relations Ordinance, 2002---Petitioners along with said petitions, filed application under Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 for grant of interim injunction, which application was accepted and interim order was passed---Employers moved an application under S.50(3)(a) read with S.45(2) of Industrial Relations Ordinance, 2002 seeking clarification of interim order---Interim order sought to be clarified was to the effect, "meanwhile the respondents, if had issued letters of termination by way of retrenchment in respect of petitioners, were directed not to give effect to such termination letters till the next date"---Said interim order which was being extended from date to date and continued to operate, was very .clear, unambiguous, unequivocal, very simple, easy to understand and required no further clarification by Bench of National Industrial Relations Commission---Employers had acted on their wrong assumption and had defied to give effect to interim order at their own whim and had cleverly tried to absolve themselves by filing .application seeking clarification of interim order---Court, which possessed jurisdiction to deal with or try the case could pass an interim order, which later on could be held as right or wrong, but the legal course for the other party was to obey and comply with it---If party was aggrieved by said interim order, it could either make submission to the court dealing with the case that same be recalled or vacated or to file an appeal to challenge. its legality, but not to make its own interpretation and disobey same--For grant of interim injunction, besides prima facie case, balance of inconvenience and irreparable loss was to be present in favour of person who sought interim injunction--If interim order in question was not confirmed, it would neither cause any inconvenience nor irreparable loss or injury to petitioners as .later two ingredients did not lie in favour of petitioners, but leaned to the side of employers---Interim order, however, could not-be confirmed as same could only be determined after evidence was recorded, considering whether letters of termination by way of retrenchment of petitioners were act of victimization on account of their trade union activities, arid as such wart acts of unfair labour practice--- Application under Regln.32(2)(c) of National Industrial .Relations Commission, (Procedure and Functions) Regulations, 1973, was dismissed and interim order was recalled.

1961 PLC 95 (SC India); 1962 PLC 435; 1996 PLC 18; 1998 PLC 80; 2001 PLC 543; 1963 PLC 131; 1968 PLC 244; 1984 PLC 115; 2004 PLC 343; PLD 1979 Kar. 493; 2001 PLC 79; 2000 PLC 430; 2003 PLC 240; 2002 PLC (C.S.) 956; 2003 PLC 244; 2004 PLC 38; PLD 2004 Lah. 65; 1998 PLC 403; 1970 SCMR 491; 1970 PLC 671; PLD 1976 Lah. 611; 1984 PLC 1645; PLD 1986 Lah. 90; 1986 PLC 985; 1990 PLC 599; 1991 PLC 32; 1997 SCMR 1508; 1998 SCMR 68; 2006 PLC 380; 2005 PLC 301; 2002 PLC 52; 1985 SCMR 257; 1983 PLC 477; 1980 PLC 1224; .1980 PLC 888; PLD 1977 Kar. 250; PLD 1976 Lah. 1169; Allah Ditta v. The Punjab Labour Appellate Tribunal PLD 1.985 Lah. 407; Iftikhar Ali v. Jvvid Dastgir Mirza PLD 1975 Lah. 126 and A.N.M. Mehmood v. M.O. Ghani Vice-Chancellor PLD 1967 Dacca 67 ref.

M.A.K. Azmati for Petitioners.

Shahid Anwar Bajwa for Respondents.

Northern Areas Chief Court

PLCCS 2007 NORTHERN AREAS CHIEF COURT 800 #

2007 P L C (C.S.) 800

[Northern Areas Chief Court]

Before Muzaffar Ali and Shahib Khan, JJ

MUHAMMAD AFZAL

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, Northern Areas, Gilgit and 3 others

Writ Petition No.19 of 2006 and Civil Miscellaneous No.37 of 2006, decided on 4th April, 2007.

Civil service---

----Teacher (BPS-14), post of---Applications for such post invited through advertisement from eligible candidates---Petitioner passed test/interview for post in BPS-14, but was appointed as teacher in BPS-7 instead of BPS-14---Petitioner performed duties against post in BPS-14 for more than five years---Petitioner later on passed B.Ed. Examination, over which he was promoted against post in BPS-14---Department after one month through a general order cancelled promotion order---Validity---Petition for having accepted appointment in BPS-7 and joined same on his own accord could not get any benefit of such issue---Order of petitioner's appointment as Teacher in BPS-7 was dictatorial as he was entitled to be appointed in BPS-14 for having fulfilled all advertised requirements---Petitioner's promotion order was beyond the ambit of general order---General order was passed without giving show-cause notice to petitioner, thus, same was violative of principles of natural justice---Promotion order before its cancellation through general order remained operative and petitioner was assigned same post in BPS-14 from the very day of his appointment---Principle of locus poenitentiae was available to petitioner---Chief Court set aside impugned order, resultantly promotion order would remain operative in field from date of its issuance.

1982 PLJ Tr. C. (Service) 165; 1999 CLC 723; 1988 PLC (C.S). 786; 1988 SCMR 1745; 1981 SCMR 604; 1992 SCMR 1652 and PLD 1969 SC 407 ref.

Haji Shafqat Wali for Petitioner.

Advocate-General for Respondents.

PLCCS 2007 NORTHERN AREAS CHIEF COURT 1085 #

2007 P L C (C.S.) 1085

[Northern Areas Chief Court]

Before, Raja Jalal-ud-Din, Chairman and Sahib Khan, J

SULTAN ALI and 8 others

[Peshawar High Court]

Before Salim Khan and Hamid Farooq Durrani, JJ

Dr. WAQAR-UR-REHMAN QURESHI

Versus

CHIEF EXECUTIVE, AYUB MEDICAL INSTITUTION, ABBOTTABAD and 4 others

Writ Petition No.339 of 2005 (Abbottabad Bench)/Writ Petition No.1197 of 2004 (Peshawar), decided on 1st December, 2006.

North-West Frontier Province Medical Institutions Rules, 2001---

----Rr. 8, 9 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Civil service---Appointment in other Department---Repatriation---Petitioner was appointed as Lecturer in Khyber College of Dentistry at Peshawar, subsequently when a post of Assistant Professor in Dentistry Department of Ayub Medical College, Abbottabad was advertised, petitioner was duly selected and was appointed and he relinquished the charge of Lecturer in Khyber College of dentistry at Peshawar in order to join new post of Assistant Professor in Dentistry Department of Ayub Medical College Abbottabad---During appointment on said new post, petitioner was selected for a post of consultant in oral Surgery under the Ministry of Health of Saudi Arabia and Principal, Ayub Medical College, Abbottabad granted leave to petitioner for a period of 730 days---During absence of petitioner from Pakistan due to his appointment in Saudi Arabia, order of repatriation of petitioner to parent Department was issued without any cogent reason and petitioner was repatriated and on his return to Pakistan he found that his post in Dentistry Department of Ayub Medical College was not available as he was declared already repatriated---Validity---Petitioner was not on deputation to Ayub Medical College from Khyber College of Dentistry, of Peshawar, but was appointed on regular basis subject to completion of period of probation and petitioner had relinquished charge of post at Khyber College of Dentistry, Peshawar for his appointment against new post of Assistant Professor in Ayub Medical College, Abbottabad---Petitioner, in circumstances was an employee of Ayub Medical College, with no relation of employment with Khyber College of Dentistry and the Health Department except with regard to the lien---Authorities, in circumstances did not have the authority to unilaterally repatriate petitioner to parent/previous Department of petitioner/Khyber College, Peshawar and Government notification of repatriation of petitioner to his previous department with immediate effect, was without lawful authority, void and ineffective on the rights of petitioner.

Nazir Hussain for Petitioner.

Fawad Saleh and Abdul Rashid, D.A.-G. for Respondents.

Date of hearing: 28th September, 2006.

PLCCS 2007 PESHAWAR HIGH COURT 345 #

2007 P L C (C.S.) 345

[Peshawar High Court]

Before Ejaz Afzal Khan and Raj Muhammad Khan, JJ

BURHAN-UD-DIN

Versus

FEDERATION OF PAKISTAN through SECRETARY FINANCE DIVISION, Islamabad and 4 others

Writ Petition No.340 of 2006, decided on 5th October, 2006.

Fundamental Rules---

---R. 81---Constitution of Pakistan (1973), Art.199---Constitutional petition---Civil service---Increments on acquiring higher qualification---Entitlement---Petitioner had prayed that direction be issued to authorities to grant him three advance increments on account of his improvement in his academic qualification and full allowance during his leave on half pay in terms of Fundamental Rule No.81---Relevant rules regarding grant of increments had revealed that an employee of a Bank would be entitled to advance increments only when he had acquired a higher qualification in the subject specified by the Bank---Petitioner had obtained Master Degree in subject of Islamiyat, which was not amongst the subjects listed in the relevant rules---Petitioner, in circumstances, could not claim increments as of right and had rightly been declined by the authorities---Contention of petitioner that he was entitled to grant of full allowance during leave on half average pay addressed on the strength of Fundamental Rule No.81, was repelled as said Rule did not provide any such eventuality.

Chairman, A.D.B.P. v. Abdul Wadood in Civil Revision No.55.5 of 1999 decided on 21-4-2000 and Tara Chand and others v. Karachi Water and Sewerage Board Karachi and others 2005 SCMR 499=2005 PLC (C.S.) 368 ref.

Sh. Shapur Jan for Petitioner.

Nemo for Respondents.

Date of hearing: 5th October, 2006.

PLCCS 2007 PESHAWAR HIGH COURT 361 #

2007 P L C (C.S.) 361

[Chief Court of Northern Areas]

Before Muzaffar Ali and Sahib Khan, JJ

SHAMSHAD HUSSAIN, INSPECTOR POLICE, NOW ACTING D.S.P. MASHABRUM DISTRICT GHANCHE

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, N.As., Gilgit and 12 others

Writ Petition No.2 of 2006, decided on 24th August, 2006.

Civil service---

----Promotion---Police Inspector---Promotion to the post of D.S.P. was deferred for non-issuance of clearance certificate by FMCC---Validity---Chief Secretary Northern Areas was final authority under the Rules to consider and to decide promotion cases who was well competent to promote the Officer notwithstanding the fact that the. FMCC disagreed with same---No case of promotion in past having been deferred on non-issuance of clearance certificate by FMCC' and eligible officers had been promoted despite FMCC had not issued such certificate to the officers, petition could not have been deferred for non-issuance of clearance certificate---Writ petition was competent---Chief Secretary Northern Areas was directed by Chief Court to promote the petitioner to the rank of D.S.P.

PLD 2004 SC 271 and PLD 1978 Kar. 703 ref. Syed Jaffer Shah and Johar Ali for Petitioner.

Advocate-General for Respondents Nos.1 and 2 and Fida Ali, Departmental Representative.

Date of hearing: 23rd August, 2006.

PLCCS 2007 PESHAWAR HIGH COURT 703 #

2007 P L C (C.S.) 703

[Peshawar High Court]

Before Muhammad Qaim Jan Khan and Ejaz Afzal Khan, JJ

HADIA and 10 others

Versus

E.D.O. and others

Writ Petitions Nos.989, 1097, 1101, 1102, 1300, 1526 and 1774 of 2006, decided on 21st December, 2006.

North-West Frontier Province Civil Servants Act (XVIII of 1973)---

----S. 5---General Clauses Act (X of 1897), S.21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment---Locus poenitentiae, principle of---Petitioners, in response to advertisement, had applied for appointment on posts of P.T.C. female teachers, and after qualifying the test and interview were appointed as P.S.T. Teachers vide order for a period of three years---Petitioners assumed their charge and duty and had been working against the said posts since then---Subsequently before expiry of said period of three years, authorities again invited applications for the same posts for appointment on contract through advertisement---Petitioners had challenged said subsequent advertisement in their constitutional petitions contending that when petitioners were appointed on contract against vacant posts of P.S.T. for a period of three years, no fresh applications for appointment on contract against such posts could be invited before the expiry of said three years---Counsel appearing on behalf of authorities by referring to S.21 of General Clauses Act, 1897, had contended that where a power was conferred on a functionary or Authority to pass an order, it also would include a power to add, to amend, vary or rescind that order---Counsel for authorities further stated that order rescinding the appointments, was not open to any interference---Validity---Provisions of S.21 of General Clauses Act, 1897, undoubtedly, had provided that power to pass an order included the power to amend, vary or rescind it, but that power being enshrined in the principle of locus poenitentiae, could not be exercised where the order passed was acted upon and a valuable right had accrued in consequence thereof---Authorities, in circumstances, had no power to rescind or recall the order before expiry of contracted period of three years---Act of authorities, inviting applications before expiry of three years, was declared without jurisdiction and lawful authority, holding that petitioners were entitled to retain the posts till the expiration of stipulated period of .three years.

Muhammad Nawaz v. Federation of Pakistan and 61 others 1992 SCMR 1420; Central London Property Trust Ltd. v. High Trees House Ltd. (1947) KB 130; Evenden v. Guildford Football Club (1975) 1 QB 1917 and Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 ref.

Miss Musarrat Hilali for Petitioners.

Nizar Muhammad Khan, D.A.-G. for Respondents.

Date of hearing: 21st December, 2006.

PLCCS 2007 PESHAWAR HIGH COURT 856 #

2007 P L C (C.S.) 856

[Peshawar High Court]

Before Ijaz-ul-Hassan Khan and Dost Muhammad Khan, JJ

ZAHIR SHAH and 11 others

Versus

AGENCY EDUCATION OFFICER, MOHMAND AGENCY GHALLANAI and 3 others

Writ Petition No.254 of 2006, decided on 11th October, 2006.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment---Withdrawal of appointment---Petitioners were appointed as P.T.C. teachers on the recommendation of Departmental Selection Committee in the laid down manner on merits---Petitioners were allowed to assume charge of their posts at the respective places after initial verification of testimonials, including domicile certificates from concerned quarters---During the course of performing duties, Authority without any show-cause notice to petitioners or giving them any opportunity of hearing, withdrew their appointment orders on the pretext that they were holding domiciles of category "B"---Validity---Petitioners, .right from their forefathers and by birth, were the permanent residents of "Mohmand Agency" having permanent abode there and that fact could not be refuted by the Authorities in any manner---Petitioners along with their applications for the post of P.T.C. teachers had also submitted their original domiciles of category "A" issued by the relevant office---No objection was raised about the authenticity and genuineness of said certificates, which were accepted as valid holding petitioners permanently domiciled in "Mohmand Agency" right from the time of their forefathers---Tribal domicile certificates were to be issued only to eligible tribesmen who were permanently residents of that area, no reference was found to category "A" or category "B" in the domicile certificate---Political Agents at their whim, in addition without any lawful authority had imposed further conditions categorizing the domicile certificate into "A", "B", "C"---Such additional conditions were in disregard of law and rules on the subject---Once such certificate was issued, in due course to tribesman permanently settled in any Tribal Agency, it would remain intact, unless its holder decided to settle in another place with clear intention not to return to the place of his birth or origin---Impugned action taken by Authorities cancelling/recalling the domicile certificates of petitioners on fallacious ground and then recalling their appointment orders, without giving them opportunity of hearing, were without jurisdiction, without lawful authority, arbitrary, unjustified and against principles of natural justice---Both impugned orders of Authorities with regard to cancellation of domicile certificates of petitioners and recalling/cancelling their appointment orders on P.T.C. posts, were set aside and Authorities were directed to reinstate petitioners on the post they were holding at the time of passing of impugned orders.

Government of Balochistan and others v. Rifat Parveen 1981 SCMR 1002 ref.

(b) Pakistan Citizenship Act (II of 1951)---

----S. 17---Pakistan Citizenship Rules, 1952, R.23---Domicile and citizenship---Domicile and citizenship would represent two different conceptions having mutually overlapping effects---Citizenship would confer rights along with corresponding liabilities on the citizen towards the State/society, while a domicile or permanent residence certificate had reference to civil rights and privileges acquired thereunder---Generally, domiciles were of two main categories i.e. domicile of country which was called citizenship and of a particular area/District or Tribal Agency---In Province of N.-W.F.P., Government vide notification had issued instructions to the District Magistrate/Political Agents and other authorized officers laying down certain conditions to be fulfilled by the applicant before getting domicile of Tribal Area---No mention of category "A" or "B" domicile was there in those instructions---Sole object behind said instructions was that Tribal Domicile Certificates were to be issued only to eligible Tribesmen who were permanent residents of that area---Domicile of any person was the place which was considered by law to be his permanent home---Two essential conditions 'would confer indefeasible right of domicile on a person i.e. that he must dwell permanently within a particular area with no express intention of giving up both of them---In law, the term "abode" denoted the place a man's residence or his business that he could reside elsewhere---Such term was quite distinct from "domicile" which denoted more than a place of residence---Word "domicile" had been derived from the word "domus" meaning a home or a dwelling place and it was the relationship which the law indicated between an individual and a particular locality or a country--Under the laws and rules on the subject, every person had a right to get domicile certificate, provided he had a permanent abode in that area or was born of parents permanently domiciled in that place---Same was called domicile acquired by birth and his status would remain intact unless he would choose to settle in another place, District or Tribal Agency permanently, with no intention to return to the place of his birth/domicile/origin.?

Joshni v. M.B. State AIR 1955 SC 234 ref.

Khalid Rehman Khan for Petitioners.

Nizar Muhammad Khan, Dy.A.-G. for Respondents.

Date of hearing: 11th October, 2006.

PLCCS 2007 PESHAWAR HIGH COURT 1071 #

2007 P L C (C.S.) 1071

[Peshawar High Court]

Before Ejaz Afzal Khan and Dost Muhammad Khan, JJ

MUHAMMAD ILYAS KHAN

Versus

DISTRICT OFFICER REVENUE AND ESTATE OFFICE, PESHAWAR and another

Writ Petition No.835 of 2007, decided on 23rd May, 2007.

North-West Frontier Province Civil Servants Act (XVIII of 1973)---

----S. 10---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Transfer---Petitioner had impugned order of District Officer Revenue and Estate whereby order transferring and posting of petitioner as Patwari was withdrawn---Petitioner had contended that impugned order and orders preceding it appeared to be motivated by mala fides and political consideration which had to be struck down---Validity---Transfer and posting being related to the terms and conditions of service, would fall within the exclusive domain of the Service Tribunal---High court could not step in to interfere therewith under Art.199 of the Constitution---Even the order motivated by mala fides and passed on political consideration, could be challenged before Service Tribunal, which had exclusive jurisdiction to inquire into such matters---When redress could be had by an appeal before the Departmental Authority and then, before the Service Tribunal, High Court would not like to interfere with such orders in the exercise of its extraordinary equitable discretionary constitutional jurisdiction---High Court, however, instead of dismissing constitutional petition filed by petitioner, treated it an appeal before Departmental Authority and dent it thereto for decision in accordance with law within stipulated period.

Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others 1997 SCMR 167; Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169; Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others 1997 SCMR 170; Secretary Education N.-W.F.P. Peshawar and 2 others v. Mustamir Khan and another 2005 SCMR 17; Peer Muhammad v. Government of Balochistan through Chief Secretary and others .2007 SCMR 54; Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530 and Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 ref.

Abdul Maabud Khattak for Petitioner.

Date of hearing: 23rd May, 2007.

PLCCS 2007 PESHAWAR HIGH COURT 1091 #

2007 P L C (C.S.) 1091

[Peshawar High Court]

[Quetta High Court]

Before Muhammad Nadir Khan, J

ABDUL MAJEED

Versus

DISTRICT AND SESSIONS JUDGE, LASBELA AT HUB and another

Constitutional Petition No.412 of 2003, decided on 11th September, 2006.

West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance (IX of 1966)---

----Ss. 5 & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Getting official accommodation vacated from possession of retired civil servant---Petitioner, during his posting as Sub-Registrar was provided official accommodation, on retirement of petitioner notice was . issued to him to vacate the said house, but he did not vacate the same--Claim of petitioner was that before his retirement he made application for allotment of house in question and that Chief. Minister as well as Tehsil Nazim had recommended his request for allotment of house in question to him on ownership basis---District and Sessions Judge, on application of respondent ordered vacation of house from petitioner---Validity---No dispute existed between the parties about petitioner having been retired from service and house in question was property of Government and petitioner after his retirement had no locus standi to retain possession of said house---Mere submission of application for allotment of said house on ownership basis could not create any right/title in favour of petitioner or to retain its possession---Petitioner could not be said to be having any legal right to challenge proceedings initiated against him for his dispossession from the house---Under West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, .1966 no order from any court was required for dispossession of an unauthorized occupant---District and Sessions Judge had no jurisdiction to make any order on an application for dispossession of illegal occupation; it was for the Department to take action for dispossession of petitioner, which it failed to take which reflected maladministration of concerned Authority---Order passed by District and Sessions Judge was set aside---Competent Authority was to take action for dispossession of petitioner as per provisions of West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966---Constitutional petition was accepted to the extent of setting aside order of District and Sessions Judge, whereas prayer of petitioner restraining his dispossession was rejected.

Hadi Shakil Ahmed for Petitioner.

Addl. A.-G. for Respondents.

Date of hearing: 4th September, 2006.

Service Tribunal Balochistan

PLCCS 2007 SERVICE TRIBUNAL BALOCHISTAN 413 #

2007 P L C (C.S.) 413

[Punjab Service Tribunal]

Before K.B. Abid, Member-II

ZAHID ALI, ASSISTANT EXCISE AND TAXATION OFFICER (RETD.)

Versus

SECRETARY, EXCISE AND TAXATION DEPARTMENT and another

Appeal No.137 of 2006, decided on 6th December, 2006.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 3(a)(b), 4(1)(a)(ii) & 7---Punjab Civil Servants Pension Rules, 1955, R.1.8---Punjab Service Tribunals Act (IX of 1974), S.4---Imposition of penalty of withholding of 50% pension was imposed on appellant after issuing him show-cause notice and holding inquiry against him---Basic charge against appellant was that he had failed to exercise stringent administrative/supervisory control on the Excise and Taxation Inspectors and other lower staff of circles which culminated into financial irregularity---Appellant had also been proceeded against on account of irregularities pertaining to bogus treasury receipts of property tax, bogus collection, misplacement of treasury receipts, fabricated stamps of different Bank branches and embezzlement of huge amounts of property tax---Charges against appellant were framed without having requisite receipts and details from concerned branches of State Bank of Pakistan, National Bank of Pakistan and Government Treasury---Effect---Verification of basic record was essential and appellant should have been provided opportunity of defence as well as cross-examination---Inquiry officer had relied on available evidence and vouchers produced before him---Factually the charges against appellant were framed on the basis of missing vouchers or receipts which were required to be verified from the Treasury Officer; thereafter the details should have been provided to appellant---Departmental Authorities had not furnished requisite details to appellant which had created miscarriage of justice to him---No opportunity was given to appellant for producing defence evidence---Appellant was penalized on the basis of vague, and unconfirmed charges, in discriminatory way and beyond one year of retirement---Impugned order was set aside, in circumstances.

1985 PLC (C.S.) 91 ref.

Tahir M. Butt for Appellant.

Sadaqat Ali ETO on behalf of D.G. Excise for Respondents.

Date of hearing: 6th December, 2006.

PLCCS 2007 SERVICE TRIBUNAL BALOCHISTAN 483 #

2007 P L C (C.S.) 483

[Balochistan Service Tribunal]

Before Amanullah Khan, Chairman and Syed Iftikhar-ul-Islam and Syeda Tahira Safdar Members

MUHAMMAD ISMAIL

Versus

GOVERNMENT OF BALOCHISTAN, through Secretary S&GA and others

Service Appeals Nos.73, 88 of 2002, 2 to 5, 7, 9, 15 and 30 of 2003, decided on 28th December, 2006.

Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979--

----R. 7---Balochistan Civil Servants Act (IX of 1974), S.9---Government of Balochistan Rules of Business, R.39(1)---Balochistan Service Tribunals Act (V of 1974), S.4---Police Rule, 1934, Preamble---Out of turn accelerated promotion---Possibility---Respondents, despite being juniors, were granted out of turn accelerated promotion from the rank of Deputy Superintendent of Police (BPS-17) to rank of Superintendent of Police (BPS-18), on account of hard work, exceptional professionalism and in recognition of their meritorious services---Appellants who were senior to respondents had filed appeal against said out of turn accelerated promotion granted to respondents contending that no provision existed under Police Rules, 1934 or other service laws, whereby out of turn acceleration of promotion could be granted to the officers in BPS-17 working in the police department; that under service laws, promotion of officers could only be made on the basis of seniority-cum-fitness through Departmental Committee and that while giving accelerated promotion to respondents to the utter detriment of appellants, no cogent reasons were given---Validity---Under Police Rules, 1934, in case of performance of extraordinary services by Police Officer he could only be awarded in shape of medals etc., and not by giving him out of turn promotion---Authority, no doubt had discretion to exercise such powers, but such discretion should be reasonable and not arbitrary---Service Tribunal disapproved such exercise of powers by Chief Executive holding that in order to avoid such-like situation in future, no accelerated promotion should be given to police officers specifically in B-17 and above without adhering to the Rules--If a Police Officer had to be rewarded for his meritorious service, there were other ways of doing so i.e. by giving medals etc., but accelerated promotion could not be given to the determent of other officers, working in the same grade.

Walayat Ali Mir v. Pak International Airlines 1995 SCMR 650 rel.

Basharatullah and Adnan Basharat for Appellant.

M. Salahuddin Mengal, A.-G. for Official Respondents.

H. Shakil Ahmed for Respondent No.4.

Muhammad Riaz Ahmed for Respondent No.5.

Date of hearing: 16th November, 2006.

PLCCS 2007 SERVICE TRIBUNAL BALOCHISTAN 891 #

2007 P L C (C.S.) 891

[Balochistan Service Tribunal]

Before Justice Amanullah Khan, Chairman Muhammad Idrees Baloch and Syeda Tahira Safdar, Members

MUHAMMAD IQBAL

Versus

INSPECTOR-GENERAL OF POLICE, BALOCHISTAN and another

S.A. No.71 of 2002, decided on 6th March, 2003.

Balochistan Civil Servants (Efficiency and Discipline) Rules, 1983---

----R. 4(1)(h)---Balochistan Service Tribunals Act (V of 1974), S.4---Dismissal from service---Appeal---Appellant serving as constable was dismissed from service after issuing him show-cause notice and holding inquiry against him on charges of inefficiency, misconduct and corruption---Main allegation against appellant was that he got issued bogus demand slips of diesel/mobil oil and misappropriated government amount in connivance with other officials of the department---No specific inquiry had .been conducted against appellant in that respect---Discrimination was noticed as main accused had been retained in service while only punishment of reduction in rank had been awarded to him, which was not proper, it would therefore, be just and proper to take lenient view in respect of appellant too, especially when he had not been proved to be guilty of the charge---Appeal was allowed, impugned order was set aside and appellant was reinstated in service from the dale of dismissal from service with all back-benefits---One annual increment of appellant, however was withheld/forfeited.

Muhammad Ashfaq Butt for Appellant.

Advocate-General for the State.

Date of hearing: 19th December, 2002.

PLCCS 2007 SERVICE TRIBUNAL BALOCHISTAN 904 #

2007 P L C (C.S.) 904

[Balochistan Service Tribunal]

Before Justice (Retd.) Amanullah Khan, Chairman, Syed Iftikhar-ul-Islam and Mrs. Syeda Tahira Safdar, Members

NAQEEBULLAH KHAN

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary Government of Balochistan, Quetta and 4 others

S.A. No.114 of 1999, decided on 10th Julie, 2004.

Balochistan Civil Servants Act (IX of 1974)---

----Ss. 8 & 9---Balochistan Service Tribunals Act (V of 1974), S.4---Seniority---Promotion---Appeal---Appellant who joined service in 1969, was first promoted in B-17 in 1978, then to B-18 in 1989 as Horticultural Officer, and finally was promoted to the rank of Director in B-19 in 1998---Respondents, who joined service subsequent to appellant, were promoted as Director in 1995---Record showed that final seniority list of Deputy Directors was circulated in 1994---Appellant represented against ignoring his seniority position before; the Government; but he did not challenge same before any legal forum---After a period of about 5 years final seniority list of Directors was notified in 1999 against which appellant submitted representation/appeal to Chief Secretary in 1999 by claiming promotion to B-19 from the year 1995 and grant of seniority over the respondents---No response had been received from departmental Authority---Appellant claimed that he possessed required experience of 18 years as Deputy Director and was entitled to be promoted as Director B-19 earlier to respondents who did not possess said experience---Appellant did not submit the copies of orders of his appointment, promotion to Grade B-17, B-18 and B-19 in support of his appeal and agitated his claim of seniority and promotion for the first time in 1995, in 1999 and remained silent throughout the period from the years 1982 to 1994---Appellant also failed to challenge the final seniority list of Deputy Directors circulated in the year 1994 before the appropriate forum, he, however, had challenged the seniority list of 1999---Claim of appellant of promotion to B-18 and B-19 was hit by the bar of limitation; he should have agitated his grievance at the appropriate time before legal forum for redressal---Grounds of appeal were also not convincing to justify his claim of promotion with retrospective effect---Impugned seniority list had been prepared under the provisions of S.8(4) of Balochistan Civil Servants Act, 1974 and did not suffer from any legal infirmity---Appellant having failed to make out his case for grant of retrospective promotion and seniority over respondents, appeal was dismissed.

PLD 1993 SC 10 rel.

Abdullah Khali Kakar, Advocate.

Wazirzada Fazal-ur-Rehman, Advocate.

Muhammad Ashfaq Butta, Advocate.

Muhammad Salahuddin Mengal, Advocate-General.

Date of hearing: 1st April, 2004.

Service Tribunal Nwfp

PLCCS 2007 SERVICE TRIBUNAL NWFP 1281 #

2007 P L C (C.S.) 1281

[N.-W.F.P. Service Tribunal]

Before Shah Sahib and Sultan Mahmood-Khattak, Members

Mst. MUQADDAS TAYABBA

Versus

SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF N.-W.F.P:, PESHAWAR and 3 others

Appeal No.63 of 2007, decided on 11th June, 2007.

North-West Frontier Province (Efficiency and Discipline) Rules, 1973---

R. 4(1)(b)(iv)---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Dismissal from service---Appeal---Appellant was dismissed from service on ground of remaining . absent from duty for some days---Due to killer earthquake of 8th October, 2005, appellant's brother and a sister lost their lives while her father and mother had sustained serious injuries---Appellant due to the loss of her dear and near ones could not remain normal and had remained absent from duty for some days---Appellant fully explained factual situation; being a newly-married woman, tragic circumstances she faced, caused her birth of a pre-mature baby, due to which she remained under treatment at Hospital---Appellant being affectee of massive earthquake, could not have been able to perform her duties as expected of a normal person under the ordinary course of circumstances---Appellant appeared to have put in a request for' leave in reply to explanation, but same had not been entertained---No inquiry had been held in her case nor had any charge been framed against her and she had been condemned unheard---Imposition of a major penalty of dismissal from service, in circumstances was not justified---Impugned order had been issued by department retrospectively albeit without following the proper inquiry procedure which was not tenable under the law---Impugned order was set aside in appeal with direction to the department to consider reinstatement of appellant into service within specified time---Intervening period and absence from duty onward, would be treated as extraordinary leave.

2000 SCMR 1743 and 1993 PLC (C.S.) 1755 rel. M. Asif Yousafzai for Appellant.

Zaffar Abbas Mirza, A.-G.P. for Respondents.

PLCCS 2007 SERVICE TRIBUNAL NWFP 1286 #

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

Mst. SHAISHTA JAVED IQBAL

Versus

EDUCATION DEPARTMENT

Appeal No.2153 of 2006, decided on 6th September, 2006.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----R. 4(1)(b)(iv)---Punjab Service Tribunals Act (IX of 1974), S.4---Removal from service---Appeal---Penalty of removal from service was imposed on appellant on ground of continued wilful absence from duty for about two years and nine months---Departmental appeal filed by appellant after about three years from removal from service, was not entertained being time barred---Appellant, however obtained a directive from Chief Minister to the effect that appellant be given special permission enabling her to file an appeal before Punjab Service Tribunal to seek remedy under the law---Contention of appellant was that directive from Chief Minister could be considered as an administrative order regarding condonation of delay for filing appeal before Service Tribunal and appeal could be admitted for regular hearing---Contention was repelled, because it was the exclusive jurisdiction of Service Tribunal to condone or not to condone delay in accordance with circumstances and merits of individual cases---Delay could not be condoned on the basis of any directive from Chief Minister---Appeal being grossly time-barred, was dismissed, in circumstances.

Pervaiz Inayat Malik for Appellant.

District Attorney for Respondent.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 132 #

2007 P L C (C.S.) 132

[Punjab Service Tribunal]

Before Azad Muhammad Awan, Member-II

AHMED NAWAZ

Versus

SUPERINTENDENT, CENTRAL JAIL, RAWALPINDI and another

Appeal No.27 of 2006, decided on 16th May, 2006.

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----S. 3---Punjab Service Tribunals Act (IX of 1974), S.4---Removal from service---Appeal---Appellant was awarded punishment of removal from service by Superintendent Central Jail on account of negligence and misconduct but D.I.-G. Prisons, in appeal converted said punishment into compulsory retirement from service---Validity---As per the Policy letter, produced by appellant and admitted by authorities, Superintendent Central Jail was designated authority for initiating proceedings under Punjab Removal from Service (Special Powers) Ordinance, 2000 against officials in B.S.-1 to 5, whereas appellant was a Head Warden in B.S.7---Initiation of disciplinary proceedings against appellant, in circumstances was contrary to said policy letter as Superintendent Central Jail, was not the Authority in case of appellant to initiate proceedings or to punish him---Impugned orders were set aside, appellant was reinstated in service and case was remanded to the Authority to hold de novo inquiry in terms of Punjab Removal from Service (Special Powers) Ordinance, 2000.

Asif Nazir Awan for Appellant.

Muhammad Naeem Malik, District Attorney for Respondents.

Date of hearing: 16th May, 2006.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 423 #

2007 P L C (C.S.) 423

[Punjab Service Tribunal]

Before Jehan Zaib Burki, Member-IV

MUHAMMAD AZAM and 6 others

Versus

ADDITIONAL INSPECTOR-GENERAL OF POLICE, INVESTIGATION BRANCH, PUNJAB, LAHORE and another

Appeals Nos.2410 to 2416 of 2006, decided on 1st February, 2007.

Punjab Civil Servants Act (XIII of 1974)---

----S. 11---Punjab Service Tribunals Act (IX of 1974), S.4---Reversion and repatriation---Authority vide its letter called for applications of volunteer constables and Head Constables having minimum qualification of F.A. etc. to fill up vacancies available in Finger Print Bureau---Appellants were duly absorbed in rank of Head Constable against existing vacancies in Finger Print Bureau and were also promoted to the rank of A.S.-I. and were also borne on seniority list---After about one year of said absorption, Authority vide its order summarily reverted appellants to the posts of constables and also reverted to their parent units/Districts---Validity---Authority had not specifically mentioned any prescribed qualification which had not been obtained by appellants in the impugned orders---Appellants could not have been repatriated as they had already been permanently absorbed in the cadre of Finger Print Bureau which had resulted automatic termination of their lien in their parent units/Districts---Record had clearly established that services of appellants had been acquired for Finger Print Bureau in accordance with procedure laid down by the Authority---Authority had issued clear-cut orders absorbing appellants on the basis of one step promotion vide orders---Said orders had clearly mentioned that said promotions had been granted consequent to recommendation by Departmental Promotion Committee against existing vacancies---Absorption in any cadre/unit of an official could only be ordered if a substantive vacancy for the purpose was available---Very fact that appellant had been duly absorbed in Finger Print Bureau and later on had also been granted further promotion to the rank of Head Constable and A.S.-I., had left no doubt that said action had been taken against substantive posts/vacancies being available in Finger Print Bureau for the purpose---Appellants, in circumstances could not be repatriated to their parent units/District; they were to be considered as regular employees of the Finger Print Bureau to all intents and purposes---Impugned orders were set aside from the date of its issue---Position prevailing in respect of appellants prior to the date of issue of the impugned orders was restored---Appellants would be entitled to their full salary and allowance for the period they had spent out of Finger Print Bureau.

1986 SCMR 962; PLD 1987 SC 304; 1994 SCMR 2232 and 2003 SCMR 1126 rel.

Mehmood Ahmad Qazi for Appellants.

Naseer Ahmad, Inspector Legal for Respondent No.2.

Muhammad Amjad Hussain, Inspector Legal for Respondent No.1.

Date of hearing: 1st February, 2007.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 432 #

2007 P L C (C.S.) 432

[Punjab Service Tribunal]

Before K.B. Abid, Member-II

Mirza MUHAMMAD IQBAL

Versus

ADDITIONAL SECRETARY (GENERAL), GOVERNMENT OF THE PUNJAB EDUCATION DEPARTMENT, (SCHOOL WING), LAHORE and another

Appeal No.1981 of 2006, decided on 13th December, 2006.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 3 & 4(1)(a)(ii)---Punjab Civil Servants Act (XIII of 1974), S.21---Punjab Civil Servants Pension Rules, 1955, R.1.8---Imposition of penalty of withholding of pension---Penalty of withholding of pension was imposed upon appellant after issuing him show-cause notice and holding inquiry against him on allegations that he made certain irregular appointments of teachers and had awarded P.T.C. regular grade on basis of forged and bogus P.T.C. result card and also drawing amount as loans against T.A./D.A. bills and had not refunded same---Show-cause notice was served on appellants after more than three years of his retirement---Under R.1.8 of Punjab Civil Servants Pension Rules, 1955 if any order regarding withholding of pension or any part of it was issued to concerned person, he would be given opportunity to vindicate his position---Authorities, in the present case, had withheld amount of pension without recording any reason and giving finding in favour of appellant---Since matter was sub judice in High Court it could not be said that appellant had embezzled amount---Element of embezzlement was baseless because authorities on record had not proved any aspect of embezzlement---Only irregularity committed by appellant was charging of amount under wrong head of account---Authority should have probed the matter through regular process of inquiry when appellant was in service, but proceedings were started against him after 3 years of retirement---Authorities having no case of withholding pension of appellant, impugned order of Authorities, was set aside.

Pervaiz Inayat Malik for Appellant.

Nemo for Respondents.

Date of hearing, 13th December, 2006.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 445 #

2007 P L C (C.S.) 445

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, (Chairman), Moula Bux Khatian, Member-I and Ashique Hussain Memon, Member-II

NIAZ ALI LUND

Versus

CHIEF MINISTER, GOVERNMENT OF SINDH, KARACHI and 2 others

Appeal No.61 of 2004, decided on 30th June, 2006.

Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974---

----R. 9-A---Sindh Service Tribunals Act (XV of 1973), S.4---Placing a civil servant in surplus pool---Absorption in lower grade---Appeal---Appellant serving as Manager (Corporate Affairs) in B-18 in Sindh Sugar Corporation, was declared surplus and was placed in surplus pool---Appellant having been subsequently absorbed as Administrative Officer in B-17 in the Directorate of. Accounts and Inspection, Finance Department, was not satisfied with his such absorption and filed appeal before Service Tribunal---Validity---Appellant was absorbed in a lower scale-17 for the reason that no post of Basic Scale-18 was lying vacant---Appellant, in circumstances was rightly absorbed in Basic Scale-17 in accordance with clause (ii) of R.9-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974---Contention of appellant that one post of Administrative Officer/Deputy Director (Admn.) in Basic Scale-18 was lying vacant in the Culture and Tourism Department and that appellant was also found fit and eligible for the said post, was repelled, because at the relevant time said post was not vacant---Another contention of appellant that one of his colleagues who was junior to him was absorbed as Deputy Director in Basic Scale-18 in the Directorate of Manpower & Training, but appellant was ignored and was discriminated, was also repelled, for the simple reason that there was no rule that the staff from surplus pool, would be absorbed in other Departments according to seniority.

Ghulam Sarwar Chandio for Appellant.

Mrs. Tabsum Ghazanfar, Asstt. A.-G. for Respondents.

Date of hearing: 27th June, 2006.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 478 #

2007 P L C (C.S.) 478

[Punjab Service Tribunal]

Before K.B. Abid, Member-II

SHAHID NAEEM

Versus

DIRECTOR-GENERAL EXCISE AND TAXATION PUNJAB and another

Appeal No.136 of 2006, decided on 17th November, 2006.

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 2(aa) & 3---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal---Penalty of dismissal from service was imposed on appellant after serving upon him show-cause notice, but without holding inquiry against him on allegation of misconduct and bad reputation---Competent Authority while issuing penalty orders had not discussed the merits of the case---Dates of personal hearing though had been mentioned in penalty orders, but no proof was given about service of said notices---In case department had authentic proof about service of personal notice for hearing, then it should have opted ex parte proceedings and passed order by taking in view merits and material evidence on record---Department had not passed orders by taking into consideration reply of appellant and departmental evidence---Ex parte orders of Authority against appellant was totally against provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000---Entire process was one sided and appellant was not afforded reasonable opportunity of defence---Such orders without defence of appellant, were unlawful---Both orders of Departmental Authorities were set aside---Appellant was reinstated into service, regular inquiry was ordered and fate of intervening period would be decided after outcome of inquiry.

Pervaiz Inait Malik for Appellant.

Nemo for Respondents.

Date of hearing: 17th November, 2006.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 513 #

2007 P L C (C.S.) 513

[Punjab Service Tribunal]

Before Jehan Zaib Burki, Member-IV

MUHAMMAD ISMAIL and 2 others

Versus

DISTRICT EDUCATION OFFICER (M-EE), KASUR and 3 others

Appeals Nos.725 to 727 of 2007, decided on 7th February, 2007.

Punjab Removal from Service (Special Powers) Ordinance (IV of 2002)---

----Ss. 3, 5, 6 & 13---Punjab Service Tribunals Act (IX of 1974), S.4---Removal from service---Appeal---Appellants were removed from service after charge-sheeting them and holding inquiry against them on charge that they had managed to get bogus appointment as P.T.C. Teacher---Inquiry Committee, instead of recording statements of the witnesses and allowing appellants to cross-examine them, simply required appellants to answer certain questions in writing---Without holding a proper inquiry, appellants were held guilty arbitrarily---So-called regular inquiry conducted against appellants by inquiry Committee, had not been held properly---Inquiry Committee should have recorded statement of Authority which had initially appointed appellants and appellants should have been allowed to cross-examine said officer---If the Authority felt that inquiry conducted was deficient in any respect, a de novo inquiry should have been ordered---Impugned orders were set aside from the date of their issue---Appellants would stand reinstated in service from the date they were removed from service---Authorities, however, were directed to hold a regular inquiry under applicable law and Rules and finalize. same expeditiously---Question of payment of back benefit and treatment of intervening period during which appellants remained out of service on account of impugned penalty, would depend on outcome of regular inquiry.

Pervaiz Inayat Malik for Appellants.

Manzoor Hussain Bhatti, District Attorney and Mian Muhammad Sabir, D.E.O. (M-EE), Departmental Representative.

Date of hearing: 7th February, 2007.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 601 #

2007 P L C (C.S.) 601

[Punjab Service Tribunal]

Before Justice (Retd.) Rustam Ali Malik, Chairman

MUHAMMAD ASLAM

Versus

SUPERINTENDENT OF POLICE (LAW AND ORDER), LAHORE and 2 others

Appeal No.65 of 2006, decided on 27th December, 2006.

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3, 5, 6 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Penalty of dismissal from service---Conversion of such penalty into punishment of reduction of pay---Appeal---Appellant, who was granted ex-Pakistan leave for 90 days, proceeded abroad---Appellant even after availing granted ex-Pakistan leave, remained absent for about one year and he was dismissed from service on ground of unauthorized absence from duty---Appellant who claimed to have met with an accident and remained under treatment for sustained injuries, filed Medical Certificate---Appellate Authority accepting said Medical Certificate reinstated appellant into service; period of his absence was treated as leave without pay; and his punishment of dismissal from service was converted into punishment of reduction in pay---Appellant had filed appeal against judgment of Appellate Authority, alleging that when Departmental Appellate Authority had considered period of absence of appellant as leave without pay, he could not be penalized for the alleged unauthorized absence for the same period---Validity---When Departmental Appellate Authority had itself treated period during which appellant had remained absent/out of service as leave without pay, it could not penalize him for the alleged unauthorized absence for the same time (because the period of his alleged absence, had been treated as leave without pay)---Person could not be "on leave" and "wilfully absent" at the same time---Such person was either wilfully absent or `on leave', but not both simultaneously---Penalty of reduction in pay by one stage as imposed on appellant by the Departmental Appellate Authority vide its order was without any basis and was liable to be set aside, in circumstances---Impugned order passed by Authority to the extent of imposition of penalty of reduction in pay by one stage on the appellant along with original order passed by competent Authority, were set aside---Appellant stood reinstated in service.

Lahore Development Authority and others v. Muhammad Nadeem Kachloo and another 2006 SCMR 434 rel.

Mehmood Ahmad Qazi for Appellant.

Khadim Hussain Sindhu, District Attorney, Naseer Ahmad, Inspector Legal CPO, Departmental Representative and Ashfaq Ahmad, Head Constable CCPO; Departmental Representative for Respondents.

Date of hearing: 27th December, 2006.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 606 #

2007 P L C (C.S.) 606

[Punjab Service Tribunal]

Before Azad Muhammad Awan, Member-III

INSPECTOR MUHAMMAD ASLAM

Versus

INSPECTOR-GENERAL OF POLICE PUNJAB, LAHORE and another

Appeal No.2230 of 2005, decided on 19th January, 2006.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 4---Punjab Service Tribunals Act (IX of 1974), S.4---Withholding of increment for one year---Appeal against---Allegation against appellant, who was a police official, was that he, in a criminal case, arrested accused and recovered stolen articles., but later on he in connivance with accused twisted the facts and submitted cancellation report---Appellant was served with show-cause notice to which he submitted reply, but same did not find favour with the Authority and penalty of withholding of increment for one year was imposed upon appellant---Record had revealed that accused was not arrested by appellant and no recovery of stolen wire was effected from him---Prosecution witnesses having not supported the prosecution case, appellant submitted a report for cancellation---Cancellation report was forwarded on merits and charges levelled against appellant were baseless and orders of Authority and also order of Appellate Authority against appellant was erroneous---Impugned orders passed by Authorities against appellant, were set aside, in circumstances.

Syed Nasir Hussain Shah for Appellant.

Malik Muhammad Ashraf, District Attorney, Zahoor Nadeem, Inspector Legal and Amjad Farooq, Assistant Representatives for Respondents.

Date of hearing: 19th January, 2006.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 630 #

2007 P L C (C.S.) 630

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

JAVED IQBAL. A.S.-I

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE SARGODHA RANGE, SARGODHA and another

Appeal No.2755 of 2005, decided on 14th April, 2006.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1995---

----Rr. 4 & 6---Punjab Service Tribunals Act (IX of 1974), S.4---Imposition of penalty of reduction in pay by two stages---Appeal against---Appellant was proceeded against on the allegation that he was directed to arrest an accused and to submit challan in the case, but he failed to follow directions of his senior officers and in that way he had committed misconduct---Appellant was issued show-cause notice and regular inquiry was conducted into the charges against him---Appellant was awarded penalty of reduction in pay by two stages---Appellant, in appeal against said order before Service Tribunal had alleged that matter relating to arrest of said accused had also remained pending before other police officer prior to posting of appellant, but action had been taken only against appellant, which was act of discrimination---Appellant had also raised serious objections against the manner in which inquiry was conducted by A.S.P. who was a new-coiner and had failed to associate appellant with the proceedings and had not given him any opportunity to cross-examine any witness---Appeal was accepted and case was remanded to concerned Authority for fresh disciplinary proceedings against appellant accordingly.

Nasir Hussain Shah for Appellant.

Rana Muhammad Yasin, District Attorney and Muhammad Aslam, Inspector for Respondents.

Date of hearing: 6th April, 2006.

2007 P L C (C.S.) 831

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

MUHAMMAD ILYAS

Versus

POLICE DEPARTMENT

Appeal No.997 of 2004, decided on 12th October, 2004.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr.3 & 4(1)(b)(iii)---Punjab Service Tribunals Act (IX of 1974), S.4---Compulsory retirement---Appeal---Appellant was awarded punishment of compulsory retirement on allegation of misconduct/ releasing proclaimed offender on his own, after his arrest---No regular inquiry was held in the case---Other official who was also co-accused in the same case of disciplinary proceedings, was awarded lesser penalty---Appellant had contended that order passed against him was ab initio illegal and void since Superintendent of Police could not exercise the powers as Authority as appellant happened to be co-accused along with an Inspector and in accordance with law, only the Authority in the case of senior co-accused could pass orders in the case of appellant as well---Deputy Inspector-General of Police, under law, could act as the Authority in case of appellant as he was Authority in cases of co-accused/S.H.O.---Impugned orders passed by D.P.O./S.P., could not sustain being not in accordance with law---Impugned/original orders passed by incompetent Authority, were set aside and case was remanded to concerned Authority/D.I.-G. to take a fresh and independent decision.

Hamid Hassan Pirzada for Appellant. D.A.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 916 #

2007 P L C (C.S.) 916

[Punjab Service Tribunal]

Before Justice (Retd). Rustam Ali Malik, Chairman

Dr. MUHAMMAD AFZAL

Versus

SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF THE PUNJAB, LAHORE

Appeal No.64 of 2006; decided on 16th April, 2007.

Punjab Civil Servants Act (VIII of 1974)---

----S. 5---Punjab Service Tribunals Act (IX of 1974), S.4---Pro forma promotion---Appeal, competency of---Appeal was resisted on the pled that appellant was required to file departmental appeal before the next higher Authority against the decision of, the Secretary Health, but he having failed to file appeal before the next higher Authority, his appeal before the Service Tribunal was premature---Even though, appellant had submitted the representation/departmental appeal before the Secretary Health instead of the next higher departmental Authority, it should have been forwarded by him to the next higher departmental Authority in accordance with law but that having not been done, appellant could not be made to suffer for the same---Even if it be assumed that any litigation was pending before different courts of law due to which case of promotion of Senior Medical Officers against the available vacancies of Additional Principal Medical Officer (BS-19), could not be taken up, even then eligible senior Medical Officers should have been promoted against the available vacancies from the date of availability of said vacancies and not from airy later date, because the delay in completing the process of promotions could not be attributed to civil servants concerned---Appellant was eligible to be considered for pro forma promotion as Additional Principal Medical Officer (BS-19) from the date when the vacancy against which he was promoted became available---Appellant had suffered in monetary terms and otherwise for a long time without any act or omission on his part---Appellant could not be made to suffer for any inaction on the part of departmental Authorities---Accepting appeal, impugned orders were set aside with direction that the case of appellant be considered for grant of pro forma promotion from the date when the vacancies of said posts had become available.

Government of N.-W.F.P. and others v. Buner Khan and others 1985 SCMR 1158; Government of the Punjab through Secretary Education and another v. Rana Ghulam Sarwar Khan and 111 others 1997 SCMR 515; Manzoor Ahmed v. Senior. Superintendent of Police and 2 others 2002 PLC (C.S.) 1078; Aslam Warraich and others v. Secretary, Planning and Development Division and 2 others 1991 SCMR 2330; Water and Power Development Authority v. Irtiqa Rasool Hashmi and another 1987 SCMR 359 and Secretary to the Government of Pakistan, Ministry of Finance and others v. Muhammad Hussain Shah and others 2005 SCMR 675 rel.

Mahmood Ahmed Qazi for Appellant.

Ijaz Farrukh, Senior Law Officer, Health Department, Departmental Representative for Respondent.

Date of hearing: 16th April, 2007.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 920 #

2007 P L C (C.S.) 920

[Punjab Service Tribunal]

Before Jehan Zaib Burki, Member-IV

TARIQ MEHMOOD BHATTI and 2, others

Versus

SECRETARY, EXCISE AND TAXATION, GOVERNMENT OF THE PUNJAB, LAHORE and 3 others

Appeals Nos.1782, 1786 and 1913 of 2006, decided on 14th February, 2007.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 3(a) & 4(1)(b)(i)---Fundamental Rules, R.29---Punjab Service Tribunals Act, (IX of 1974), S.4---Imposition of penalty of reduction to the lowest stage---Appeal---Penalty of reduction to the lowest stage, was imposed on appellants on the charge against them that they had failed to exercise adequate vigilance in the areas of their jurisdiction and had failed to check preparation, sale and misuse of illicit liquor---Appellants. were further alleged to have failed to take necessary preventive measures and to apprehend the culprits before the occurrence of the incident which took 42 precious lives and number of persons were also hospitalized---Respondents had admitted that prevention and detection of excise crime was an additional duty assigned to the appellants, who were basically performing duty of recovery of Property Tax---Appellants were not provided any additional staff, transport or funds for the said organization of the intelligence network---No evidence; whatsoever had been produced during the disciplinary proceedings to establish that the person who had died by taking poisonous liquor had purchased said liquor from their respective areas of responsibility---Inquiry Officer had, failed to examine even the various reports of newspapers which had reported the incidents in question where allegedly 42 persons had died on account of consumption of illicit/poisonous liquor---Period for which impugned penalty was to operate against them, had not been mentioned by the competent Authority, which was a violation of Fundamental Rule, 29---Impugned order was set aside from the date of its issue.

1999 PLC (C.S.) 1028; 2000 PLC (C.S.) 270; 2005 PLC (C.S.) 169; 2005 SCMR 346; 2004 SCMR 647; 2003 PLC (C.S.) 1372 and 2005 SCMR 436 ref.

Syed Hamid Hassan for Appellants.

Manzoor Hussain Bhatti, District Attorney, Syed Munawar Iqbal, Excise Inspector, Departmental Representative acid Malik Sher Muhammad, AETO, Departmental Representative for Respondent.

Date of hearing: 14th February, 2007.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 974 #

2007 P L C (C.S.) 974

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

MUHAMMAD YASEEN, EX-EXCISE AND TAXATION INSPECTOR

Versus

DIRECTOR-GENERAL, EXCISE AND TAXATION, PUNJAB and another

Appeal No.2511 of 2005, decided on 15th August, 2006.

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3 & 10---Punjab Service Tribunals Act, (IX of 1974), S.4---Removal from service---Appeal---Appellant while posted as Excise and Taxation Inspector was proceeded against on allegations of misappropriation of registration fee and preparation of bogus registration papers in respect of Tractors---Appellant was also proceeded against on allegations of inefficiency, misconduct and corruption arising out of some complaints against him---Appellant after holding enquiry against him was removed from service---Validity---Appellant failed to defend himself and he directly and indirectly confessed commission of irregularities---Appellant also showed his readiness in the course of regular inquiry to pay alleged amount of registration fee etc. in respect of various vehicles which had not been deposited by him in Government Treasury---Appellant had not been able to furnish any evidence or any cogent ground to establish his innocence---Only allowance that could be .given to appellant was the length of his service of about 25 years and also the fact that appellant had deposited the disputed amount of registration fee etc. into Government Treasury---Considering such aspect of the case while prayer of appellant for reinstatement was dismissed, it was ordered that punishment of removal from service, would stand converted into that of compulsory retirement and impugned orders would stand modified accordingly.

Pervaiz Inayat Malik for Appellant.

Rana Muhammad Yasin, District Attorney

Sadaqat Shah, AETO, on behalf of Respondent No.1.

Niaz Ahmad, Superintendent on behalf of Respondent No.2.

Date of hearing: 8th August, 2006.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 1044 #

2007 P L C (C.S.) 1044

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

Rana MUHAMMAD AFZAL

Versus

REGISTRAR COOPERATIVE SOCIETIES, PUNJAB, LAHORE and 2 others

Appeal No.810 of 2002, decided on 22nd October, 2003.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----R. 4(1)(b)(i)---Punjab Service Tribunals Act (IX of 1974), S.4---Awarding punishment of reduction in pay to initial stage of pay scale-6---Appeal---Appellant who was Inspector in Cooperative Department was awarded punishment of reduction in pay to the initial stage of pay scale-6 alter issuing him show-cause notice on allegation that he was found to he beneficiary of loan which was outstanding against Cooperative Society and he had defaulted in re-payment of said loan---Detailed and comprehensive inquiry was held into allegations against appellant who had misused his official position by being beneficiary of loan---Appellant made no effort for the recovery/repayment of the loan and the fact was proved in the course of inquiry that default was also because of the attitude of appellant---Appellant was also given every opportunity to defend himself in the course of inquiry proceedings by the Authority and by the Appellate Authority---Appellant, in circumstances could not say that he was condemned unheard---Punishment awarded to appellant was not found in accordance with law---Pay of the appellant could not have been reduced to the initial stage of pay scale because as per provisions of Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, reduction in pay could be made to a lower stage and not to the minimum of the pay sale---Appeal was partly accepted to the extent that punishment of reduction in pay scale to the minimum/initial stage of pay scale would stand converted into that of reduction in the time scale by one stage---Impugned order stood modified accordingly.

S. Hamid Hassan Pirzada for Appellant.

Rana Muhammad Yasin, District Attorney and Sher Jang, Assistant (D.R.) for Respondent.

Date of hearing: 22nd October, 2003.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 1064 #

2007 P L C (C.S.) 1064

[Punjab Service Tribunal]

Before Jehan Zaib Burki, Member-IV

MUHAMMAD TARIQ JAVED

Versus

DIRECTOR-GENERAL, EXCISE AND TAXATION, PUNJAB and another

Appeal No.1261 of 2006, decided on 14th February, 2007.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----R. 4(1)(b)(i)---Punjab Service Tribunals Act (IX of 1974), S.4---Awarding penalty of reduction in pay scale---Appeal---Appellant, who was serving as Inspector Excise and Taxation, was awarded penalty of reduction in his pay scale after charge-sheeting him and holding inquiry against him on allegation of accepting illegal gratification---Appellant had explained that complainant who owed Rs.3500 as property tax, had handed over said amount to him with the request to get the same deposited in the Bank as complainant did not want to close his shot for doing the same---Inquiry Officer in his inquiry report had himself stated that allegations of accepting illegal gratification could not be established against appellant during inquiry proceedings---Inquiry Officer, however, had found appellant guilty of receiving tax in cash which was stated to be a violation of prescribed law or rules on the subject---Said charge was not mentioned either in the charge-sheet or in the statement of allegation levelled against appellant---Such was an afterthought as impugned penalty could not be awarded to appellant on that score---Practice of receiving amount of property tax from assessee for depositing in Bank, though was not warranted by law and rules on the subject, but such practice was wide spread in the Department---Appellant had also correctly pointed out that while imposing penalty of reduction in pay to the lower scale, neither the period for which the penalty of reduction in pay to the lower scale was to operate, had been mentioned in the impugned order, nor pay of appellant could be reduced to the minimum of the scale, as it was against the prescribed rules on the subject---Pay could be reduced to one stage lower and not beyond that---Penalty of reduction in pay to the lower stage awarded to appellant, could not be sustained---Impugned order whereby said penalty was imposed on appellant as well as impugned order whereby departmental appeal of appellant against said penalty was rejected, were set aside from the date of issue.

2005 SCMR 436 and 2003 PLC (C.S.) 1372 ref.

Syed Hamid Hassan for Appellant.

Manzoor Hussain Bhatti, District Attorney, Malik Sher Muhammad, AETO, acid Abdul Aziz, Excise Inspector, Departmental Representatives for Respondents.

Date of hearing: 14th February, 2007.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 1068 #

2007 P L C (C.S.) 1068

[Punjab Service Tribunal]

Before Fakhar Hayat, Member-V

IRAM IMTIAZ

Versus

SECRETARY EDUCATION GOVERNMENT OF PUNJAB, LAHORE and 6 others

Appeal No.1872 of 2006, decided on 10th May, 2007.

Punjab Civil, Servants Act (VIII of 1974)---

----S. 9---Punjab Service Tribunals Act (IX of 1974), S.4---Transfer from one place of "working to another---Appeal to Service Tribunal---Appellant was working in a female college at "S" and her husband who was permanent resident of 'M' was also posted in M'---Real sister of appellant who was a Lecturer in Government Girls College ' M' left for abroad for Doctorate and her vacancy was filled by posting of respondent who was a contract employee---Appellant claimed her posting atM' on the vacancy of her sister on the basis of wedlock policy of the Government as her husband was also working at M'---Request of appellant was not acceded to on the ground that no vacant post of Lecturer was available inM' whereupon appellant had filed appeal against the Department---Validity---Under provisions of S.9 of Punjab Civil Servants Act, 1974, a civil servant was liable to serve anywhere in the Province---No vested right existed for an employee to claim his/her posting against a particular post or station---Wedlock policy for posting and transfer also enjoined that as far as possible husband and wife were to be posted at the same station if both of them were in government service---Question, however would be availability of post---Submission of the Department was that no vacant post of Lecturer was lying at any female college of M' District---Appeal by appellant, in circumstances had no force---Department in its comments had already undertaken that request of appellant would be considered as and when a vacant post to the subject of appellant would become available in female college atM'.

Malik M. Tariq Rajwana for Appellant.

Muhammad Aslam Warraich, OSD (Lit) Education, Ayyaz Ahmad, DEO (Colleges) Departmental Representatives for Respondents.

Date of hearing: 9th May, 2007.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 1098 #

2007 P L C (C.S.) 1098

[Punjab Service Tribunal]

Before Justice (Retd.) Rustam Ali Malik, Chairman

Mst. ZAHIDA BASHIR

Versus

DISTRICT EDUCATION OFFICER (SE/EE), NAROWAL and 2 others

Appeal No.2581 of 2005, decided on 6th November, 2006.

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Removal from service---Appeal---Appellant who was serving as S.V. Teacher, was removed from service after issuing her show-cause notice and holding inquiry against her mainly on the ground that requisite qualification for the post of S.V. Teacher as was indicated in relevant advertisement, was B.A., B.Ed., whereas appellant was simply a Matriculate---Appointment letter of appellant was alleged to be self-made and bogus and even her transfer order was found bogus---Validity---Held, there could have been some legal flaw in the proceedings initiated by the competent Authority against appellant under provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000, but as it had been found that not only her transfer order, but also her appointment orders were false, impugned order of removal from service passed against appellant, could not be set aside merely on the basis of technicalities---Appellant could not be allowed to reap the benefit of her fake appointment---Appellant had not been able to indicate in any way that she possessed the requisite qualification for the post she was holding---Even if appellant possessed a certificate of Arbi Fazil or Diploma in Vocational Training from Punjab Board of Technical Education or Certificate in Vocational Training, it would not mean chat said qualification was equivalent to the degree of B.A., B.Ed. which was prescribed by the rules for post in question.

Pervaiz, Inayat Malik for Appellant.

Khadim Hussain Sindhu, District Attorney and Arshad Pervez Qamar, A.E.O./Hqrs. Shakargarh, District Narowal, Departmental Representative for Respondents.

Date of hearing: 6th November, 2006.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 1108 #

2007 P L C (C.S.) 1108

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

Rana DILSHAD MUHAMMAD AZIZ

Versus

SECRETARY, EXCISF, AND TAXATION, LAHORE and 2 others

Appeal No.2534 of 2002, decided on 9th October, 2003.

Punjab Civil Servants Act (VIII of I974)---

----Ss. 4 & 12---Punjab Service Tribunals Act (IX of 1974), S.4---Appointment/retirement---Date of birth---Age of superannuation---Determination of---Appeal---Appellant who joined Service on basis of Matriculation certificate and other academic certificates, had stated that when he ,joined Service, his date of birth recorded in his Matriculation certificate was 15-1-1944 and entry was also accordingly made in his service book---Appellant had stated that someone filed constitutional petition challenging date of birth of appellant given in his service record claiming that date of birth of appellant was 15-1-1941 and not 15-1-1944 and that appellant was retired according to date of birth as 15-1-1941---Original record, particularly the Admission Form of appellant which he had submitted as a candidate in Matriculation examination, had shown that he himself wrote his date of birth as 15-1-1941---Appellant who could not produce original Matriculation certificate had stated that he had submitted his original certificate to appointing Authority---Contention of appellant could trot be accepted as original academic certificates were always returned by Appointing authorities and only attested copies of documents were kept on record---Appellant was deliberately avoiding to produce original certificate, because in that way fraud committed by him would be clearly uncovered---Fraud as and when detected, could be taken notice of and proceedings could also start---Considering the facts of the case as well as the original record as produced in the court regarding date of birth of appellant, appeal filed by appellant was dismissed being devoid of any legal footing---Appellant was rightly retired on basis of date of birth as 15-1-1941.

2001 SCMR 1592 ref.

Tallat Farooq Sheikh for Appellant.

Rana Muhammad Yasin, District Attorney for Respondents Nos. 1 and 2.

Mushtaq Ahmad for Respondent No.3.

Date of hearing: 9th October, 2003.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 1122 #

2007 P L C (C.S.) 1122

[Punjab Service Tribunal]

Before K.B. Abid, Member-II

ALLAH BAKHSH

Versus

DISTRICT POLICE OFFICER, MIANWALI and another

Appeal No.2398 of 2006, decided on 12th June, 2007.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----R. 4(1)(b)(v)---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal---Appellant was dismissed on allegation that he had absented himself from duty---Show-cause notice was not served in prescribed manner---Plea of appellant for not giving him fair opportunity of defence, was correct---Absence period of appellant was just for 45 days---Appellant had been penalized without proper service of show-cause notice, and without giving him fair opportunity of defence and without considering the fact that he remained ill---Fact of medical rest advised by D.H.Q. Hospital, was presented before Appellate Authority, but no consideration was given by Departmental Authorities for leave on medical grounds---Penalty awarded to appellant was too harsh---Orders of Departmental Authorities were modified to the extent of withholding of one. increment for period of one year---Appellant was reinstated into service---Absence period as given in show-cause notice would be treated as leave of the kind due.

Khadim Hussain Khokhar and Nasir Hussain Shah for Appellant.

Ch. Maqsood Ali Bhatti, District Attorney.

Muhammad Naeem, D.R. on behalf' of Respondents.

Date of hearing: 12th June, 2007.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 1141 #

2007 P L C (C.S.) 1141

[Punjab Service Tribunal]

Before Justice (Retd.) Rustam Ali Malik, Chairman

Mst. SAJIDA SHAFI

Versus

DISTRICT EDUCATION OFFICER (SE/EE), NAROWAL and 2 others

Appeal No.2580 of 2005, decided on 6th November, 2006.

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3, 5(4) & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Removal from service---Appeal---Appellant serving as Elementary School Teacher, was removed from service after issuing her show-cause notice and holding preliminary fact finding inquiry on allegation that she did not possess required qualifications for the post of Elementary School Teacher held by her---Requisite qualification for the Post of Elementary School Teacher was B.A. B.Ed., whereas appellant was simply Matriculate---Appellant was been alleged to have managed her appointment order by deceiving the competent Authority---Even though, appellant possessed the certificate in Computer Programme and a certificate from Punjab Board of Technical Education requiring vocational training or a Vocational Teachers Training Diploma or a certificate of `Arabi Fazil', but it would not mean that appellant possessed required qualification of B.A., B.Ed. for the post in question---Regular inquiry though was not conducted in the case of appellant, but since the appointment orders of appellant were found to be fake, regular inquiry in her case was hardly needed---Even though disciplinary proceedings against appellant, might have some flaws, but impugned orders, which otherwise were justified, could not be set aside on the basis of mere technicalities.

Pervaiz Inayat Malik for Appellant and Khadim Hussain Sindhu District Attorney.

Arshad Pervez Qamar, A.E.O./Hgrs, Shakargarh, District Narowal, Departmental Representative for Respondent.

Date of hearing: 6th November, 2006.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 1267 #

2007 P L C (C.S.) 1267

[Punjab Service Tribunal]

Before K.B. Abid, Member-II

Mrs. NASREEN AKHTAR

Versus

SECRETARY, HEALTH GOVERNMENT OF THE PUNJAB, LAHORE and another

Appeal No.2055 of 2006, decided on 11th April, 2007.

Punjab Civil Servants Act (VIII of 1974)-

----S. 8---Punjab Service Tribunals Act (IX of 1974), S.4---Promotion---Appeal to Service Tribunal---Appellant who was appointed in BS-14 as Charge Nurse in 1981, due to her satisfactory performance was promoted as Head Nurse, but despite being senior she was not awarded BS-17, whereas her junior was granted said grade---Appellant not only was appointed earlier to respondent, but was also promoted in BS-16 prior to the respondent for her satisfactory performance---Appellant being senior to respondent, was entitled to pro forma promotion to BS-17 on the basis of seniority-cum-fitness---Claim of appellant to pro forma promotion in BS-17, could not be rejected on the ground that her request was time-barred, because in the matter of promotion and pay, question of limitation was not applied---Case of appellant for promotion in BS-17 was from date of promotion when her next junior was promoted---Directions were given to the Authority to consider case of appellant for promotion from the date her next junior was promoted in BS-17---Date of promotion of appellant in BS-16, would be the deciding factor along with well established, formula of seniority-cum-fitness at the relevant time.

2002 PLC (C.S.) 1388 ref.

Sh. Amar Maftoon and Nasir Hussain Shah for Appellant.

Ejaz Farrukh, Senior Litigation Officer on behalf of Respondent No.l.

Date of hearing: 11th April, 2007.

2007 P L C (C.S.) 1312

[Punjab Service Tribunal]

Before Muhammad Afzal, Member-I

MEHMOOD AHMAD, S.-I.

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and 8 others

Appeal No.2986 of 2005, decided on 7th June, 2005.

Police Rules, 1934---

----R. 13.18---Punjab Service Tribunals Act (IX of 1974), S.4---Confirmation and admission to test "E"---Appeal to Service Tribunal---Appellant felt aggrieved by orders vide which his representation for confirmation and admission to the test "E" from the date of his temporary/ad hoc promotion was rejected---Validity---Police Rule 13.18, provided no condition attached for passing of Intermediate Class Course for the ,purpose of confirmation as A.S.-I.---Plea of Authorities that appellant was working on ad hoc basis till 23-1-1992, had defeated their action vide which appellant was confirmed as A.S.-I. with effect from 1-10-1991---If appellant was not to be confirmed being on ad hoc basis, then he should not have been confirmed as A.S.-I. till 23-1-1992, which would mean ad hoc promotion of appellant was not considered as an obstacle by the authorities themselves for his confirmation---Appeal was accepted and case was remanded to concerned Authority for reconsideration of the case of appellant for confirmation from the date he was promoted as A.S.-I. subject to the condition that his service record during two years following date of promotion had been found satisfactory.

Asif Nazir Awan for Appellant.

Rana Muhammad Yasin, District Attorney for Respondents.

Naseer Ahmad, Inspector Legal on behalf of Respondent No.l.

Mumtaz Ahmad, Inspector Legal for Respondent No.2.

Date of hearing: 7th June, 2006.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 1316 #

2007 P L C (C.S.) 1316

[Punjab Service Tribunal]

Before Justice (Retd.) Rustam All Malik, Chairman

IRSHAD AKHTAR GULAB, D.S.P./S.D.P.O., CITY RAHIM YAR KHAN

Versus

D.I.-G. DISCIPLINE, LAHORE and others

Appeal No.324 of 2006, decided on 6th October, 2006.

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Adverse remarks-Expunction-Appeal to the Service Tribunal---Appellant serving as D.S.P. was communicated adverse remarks in his Performance Evaluation Report recorded by his first countersigning officer---Said countersigning officer had described grading of appellant as unsatisfactory (poor); and had also remarked with regard to fitness for promotion as "unlikely to progress further"; and had described him as "corrupt to the core"---District Attorney had admitted that report in question was for a. period which being less than three months, said adverse` remarks should have been ignored by the Department as required by instructions about writing of A.C.Rs., issued vide letter No. S(R)-3542 S&GAD, dated 12-2-1968---Performance Evaluation Report for the period in question, could not be legally recorded and same could not be considered to the disadvantage of appellant---Adverse remarks, were liable to be expunged, in circumstances---Appellate Authority should have ignored the limitation while deciding Departmental appeal because there could be no limitation for challenging illegal and void order---Impugned order was set aside and adverse remarks recorded in A.C.R. of the appellant for relevant period were expunged.

Asif Nazir Awan for Appellant.

Khadim Hussin Sindhu, District Attorney and Naseer Ahmad, Inspector Legal for Respondents.

Date of hearing: 6th October, 2006

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 1318 #

2007 PLC(C.S.) 1318

[Punjab Service Tribunal]

Before Arshad Bin Ahmad, Member-IV

MUHAMMAD ASLAM

Versus

SUPERINTENDENT OF POLICE, CRIME-I, LAHORE and another

Appeal No.649 of 2004, decided on 26th April, 2006.

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3 & 10---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Appeal---Appellant was dismissed from service on ground of absence from duty---Competent Authority, while imposing the penalty of dismissal from service, had regularized the absence period by treating same as leave without pay---Absence of. appellant having been converted by the competent Authority into leave without pay, awarding penalty of removal from service to appellant was not permissible under any law---Impugned orders could not be treated as valid orders under the law which were set aside and appellant was reinstated in service, however, department could hold de novo proceedings---Period, he remained out of service, was treated as leave of the kind due.

1995 PLC (C.S.) 1161 ref. Asif Nazir Awan for Appellant.

Mian laved Ismail, District Attorney and Imtiaz Ahmad, D.R. for Respondents.

Date of hearing: 26th April, 2006.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 1320 #

2007 P L C (C.S.) 1320

[Punjab Service Tribunal]

Before Azad Muhammad Awan, Member-I

TAHIR MEHMOOD SHAHZAD

Versus

DIRECTOR-GENERAL EXCISE AND TAXATION PUNJAB and another

Appeal No.510 of 2007, decided on 30th May, 2007.

Punjab Removal from Service (Special Powers) Ordinance (IV, of 2000)-

----SS. 3 & 9-A--Punjab Service Tribunals Act (IX of 1974), S.4--Reduction to lower stage in pay scale converted into dismissal from service---Appeal---Punishment of reduction to a lower stage in pay scale was awarded to appellant after serving upon him show-cause notice and holding inquiry against him on allegation of receiving ,illegal gratification---Said punishment, subsequently was converted into dismissal from service after a lapse of about two years under provisions of S.9-A of Punjab Removal from Service (Special Powers) Ordinance, 2000 on upper time limit of one. year from passing an order of enhancement of penalty---Order enhancing punishment to appellant passed in violation of provisions of S.9-A of Punjab Removal from Service (Special Powers) Ordinance, 2000, was set aside and annellantwas reinstated in service---Period during which appellant remained out of service, would be treated as leave of the kind due.

Asif Nazir Awan for Appellant, Mian Tariq Javed, District Attorney for Respondents.

Sadaqat Ali Shah, A.E.T.O., Muhammad Yasin Butt, S.O. and Syed Jaffar Raza, Legal Inspector, D.Rs.

Date of hearing: 30th May, 2007.

PLCCS 2007 SERVICE TRIBUNAL PUNJAB 1323 #

2007 P L C (C.S.) 1323

[Punjab Service Tribunal]

Before K.B. Abid, Member-III

MUHAMMAD RAFIQUE

Versus

DISTRICT POLICE OFFICER, KASUR and another

Appeal No.466 of 2006, decided on 3rd July, 2006.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----R. 4(1)(a)(ii),(b)(i)---Punjab Service Tribunals Act (IX of 1974), S.4---Penalty' of reduction in pay by two stages---Penalty of reduction in pay by two stages was awarded to appellant after issuing him show-cause notice on ground that he remained absent for a period of 24 days---Said penalty was converted on departmental representation into stoppage of one increment for one year---Validity---Appellant had been punished without conducting regular inquiry as process of regular inquiry was dispensed with on vague charge of absence from duty---Authority had !lot mentioned details of alleged absence of 24 days---Appellant had claimed that he was patient of diabetes and requested for medical leave---Appellant was also referred by D.P.O. to Medical Superintendent---Plea of appellant that he had properly applied for medical leave, was supported from the record---Respondent department had not furnished any reason about rejection of medical leave---Order of Department Authorities being against Leave Rules, 1981, appeal filed by appellant was accepted.

Asif Nazir Awan for Appellant.

Malik Ghulam Raza, District Attorney for Respondents.

Date of hearing: 3rd July, 2006.

JUDGMN ET

K.B. ABID. (MEMBER-III).--- The appellant was served Show-Cause Notice No.2267/PA dated 8-8-2006 containing the charge that the appellant remained absent for a period 24 days, one hour and 15 minutes on different dates. The appellant submitted reply to the Show-Cause Notice and pleaded that he is not guilty of the misconduct. The Competent Authority after affording the opportunity of personal hearing to the appellant concluded that the reasons forwarded by the appellant are not plausible. The penalty of reduction in pay by two stages was awarded to the appellant. The departmental representation against this order was finally disposed of by D.I.-G. Sheikhupura Range Lahore. The penalty was converted into stoppage of one increment for one year.

Aggrieved by the order of D.I.-G., Sheikhupura, service appeal has been filed in Punjab Service Tribunal, Lahore.
Counsel for the appellant pleaded that the appellant has been punished without conducting regular enquiry. The process of regular .enquiry was dispensed with vague allegations. Counsel has stated that leave on medical ground cannot be refused by the Authority. In case, there was doubt, the civil servant should have been referred to medical board for second opinion. Counsel has also pleaded that the orders have been passed without giving detail of period of absence. Actually, the period of 24 days absence is spread over 13 months.

Ahsanullah Memon's case 1993 PLC (C.S.) 937 and Khalil Ahmed Soomro v. Government of Sindh and others 1994 PLC (C.S.) 201 ref.

Manzoor Ali Khan for Appellant.

Mrs. Tabassum Ghazanfar, Asstt. A.-G. for Respondents Nos.1 to 3.

Sirajul Haq for Respondent No.4.

Date of hearing; 18th May, 2006.

PLCCS 2007 SERVICE TRIBUNAL SINDH 589 #

2007 P L C (C.S.) 589

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Moula Bux Khatian, Member-I and Ashique Hussain Memon, Member-II

S. KHURSHEED HASSAN HASHMI

Versus

CHIEF SECRETARY, GOVERNMENT OF SINDH, KARACHI and another

Appeal No.134 of 2002, decided on 11th July, 2006.

(a) Sindh Civil Servants Act (XIV of 1973)---

----S. 9---Pakistan Medical and Dental Council Regulation, 1984---Sindh Service Tribunals Act (XV of 1973), S.4---Promotion---Entitlement---Appeal to Service Tribunal---Appellant who was M.Sc. Microbiology and M.Phil in (Microbiology), was appointed initially on ad hoc basis as Assistant Professor in year 1985 and thereafter he was regularized as such vide Notification dated 10-5-1989---Appointment of appellant .and his regularization was made under P.M.D.C. Regulation, 1984, which prescribed basic qualification as M.B.,B.S. or equivalent Medical qualification---Holders of M.Phil (Microbiology), were also eligible for such posts---Appellant, in circumstances was declared qualified and eligible for the post of Assistant Professor (Pathology) under P.M.D.C. Regulation, 1984 and was regularized as such---Subsequently P.M.D.C. Regulations, 1997 carne into force, whereby non-medical personnel were not made eligible for the post of Associate Professor (Pathology)---Appellant was not considered for promotion to Associate Professor (Pathology) in view of said Regulations---P.M.D.C. Regulations 1997, which had prospective effect, had clearly provided that appointments already made according to previous Regulations would not be adversely affected by said Regulations---Said Regulations had further provided that holder of M. Phil (Microbiology) would be eligible for appointment as Assistant Professor, Associate Professor and Professor in Pathology with requisite experience---Appellant possessed teaching experience of nearly 17 years as an Assistant Professor, which was more than requisite experience of 3 years as provided under Regulations of 1997---Much after the promulgation of Regulations of 1997, three non-medical Associate Professors were promoted to the post of Professor (B-20), but for unknown reasons, appellant, despite being eligible, was not considered for promotion---Appointment of appellant having been made under old P.M.D.C. Regulations of 1984, future career of appellant was to be governed according to said Regulations which were prevalent on the day of his appointment, especially where newly promulgated Regulations of 1997, were prospective and not retrospective in effect---Appellant, in circumstances had the right to be considered for promotion according to qualifications as laid down in Regulations of 1984---Authorities were directed to consider the appellant for promotion to the post of Associated Professor.

Pakistan Steel Mills Corporation v. Muhammad Azam Katper and others 2002 PLC (C.S.) 1050 and Kumir Mondal and others v. Paramatha Nath Chowdhury and others PLD 1963 Dacca 886 ref.

(b) Interpretation of statutes---

----Repeal of law---Effect---If a law was repealed the rights accrued and liabilities incurred under the repealed law would continue in force as if the law had not been repealed.

S. Abdul Ghaffar Wasti v. The Collector of Central Excise and Land Customs and others 1982 SCMR 888; Zulfiqar Ali Toor and others v. Additional Chief Secretary to Government of Punjab and others 1984 PLC (C.S.) 1242 and Rehmatullah Zia v. Aziz-ud-Din Qureshi and others 1999 PLC (C.S.) 132 ref.

Haider Ali for Appellant.

Mrs. Tabassum Ghazanfar, Asstt. A.-G. for Respondents.

Date of hearing: 3rd May, 2006.

PLCCS 2007 SERVICE TRIBUNAL SINDH 732 #

2007 P L C (C.S.) 732

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Muhammad Ayub Shaikh, Member-I, Muhammad Mohsin Qureshi, Member-II

Dr. IRSHAD ALI SOOMRO

Versus

GOVERNMENT OF SINDH and others

Appeal No.196 of 2001, decided on 30th December, 2005.

Sindh Seed Corporation Service Rules/Regulations---

----Cl. 23.2.3---Sindh Service Tribunals Act (XV of 1973), S.4---Removal from service--Reinstatement--Treating period of absence as extraordinary leave without pay---Appeal to Service Tribunal---Appellant was granted 180 days leave, but after availing said leave, appellant failed to resume his duty---Appellant, after show-cause notice, was awarded penalty of removal from service as per Cl. 23.2.3 of Sindh Seed Corporation Service Rules/Regulations---Governor of the Province, on appeal reinstated appellant in service, but intervening period was treated as "extraordinary leave without pay"---Appellant claimed that he had again applied for extension of' leave for three months, but he could not prove his claim from evidence on record---Contention of appellant that since impugned order of removal from service had been declared as illegal and void and that he had been reinstated in service, he could not be deprived of the salary during which he remained out of job was repelled---Appellant was supposed to resume his duties after expiry of 180 days' leave, but he failed---Appellant, who was simply allowed 180 days leave had gone abroad, despite the fact that he .was not allowed ex-Pakistan leave---Appellant's proceeding abroad without permission amounted to misconduct---Appellant, who could not prove that during intervening period he did not work anywhere to gain financial benefits was not entitled to salary for the period he remained out of service.

2002 PLC (C.S.) 1083; 2003 PLC (C.S.) 590; 2005 SCMR 678; House Building Finance Corporation v. Syed Muhammad Ali Gohar Zaidi Civil Appeals Nos.1681 and 1682 of 2003; Appeal No.1154(K) of 1999; 2003 PLC (C.S.) 36; Abdul Hafeez Abbasi v. Managing Director PIAC 2002 SCMR 1034 and Pakistan Automobile Corporation Limited v. Mansoor-ul-Haq and others 2004 PLC (C.S.) 1151 rel.

Shabbir Ahmed Awan for Appellant.

Mrs. Tabasum Ghazanfar, Asstt. A.-G. for Respondents Nos.1 to 3.

Muhammad Muzaffar-ul-Haque for Respondent No.4.

Date of hearing: 1st December, 2005.

Sindh Subordinate Judiciary Service Tribunal

PLCCS 2007 SINDH SUBORDINATE JUDICIARY SERVICE TRIBUNAL 657 #

2007 P L C (C.S.) 657

[Sindh Subordinate Judiciary Service Tribunal]

Before Justices Muhammad Moosa K. Leghari, Chairman and Khilji Arif Hussain, Member

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

SECRETARY, HEALTH DEPARTMENT GOVERNMENT OF THE PUNJAB, LAHORE and others

Versus

Dr. FAZAL-UR-REHMAN

Civil Petition No.157-L of 2003, decided on 27th February, 2003

(On appeal from the judgment dated 9-10-2002 passed by the Punjab Service Tribunal, Lahore, in Appeal No.1325 of 2002).

Punjab Service Tribunals Act (IX of 1974)---

----S.4---Constitution of Pakistan (1973), Art.212(3)---Order passed by Service Tribunal, non-compliance of---Authorities failed to decide representation of civil servant within two months as directed by Service Tribunal---Period during which the representation of civil servant remained pending was declared by the authorities to be extraordinary leave without pay---Service Tribunal allowed appeal and declared that the civil servant was entitled to full pay for the period---Validity---Civil servant could not be made to suffer for inaction and inordinate delay on the part of authorities to take a decision on the matter of transfer in time---Authorities ought to have suspended the operation of their earlier order accordingly---No legal infirmity was found in the judgment passed by Service Tribunal---No question of law of public importance was involved in the petition so as to warrant interference under Art.212(3) of the Constitution---Leave to appeal was refused.

Aziz Ahmad Chughtai, Advocate Supreme Court and Rao Muhammad Yousaf Khan, Advocate-on-Record for Petitioners.

Hafiz Tariq Nasim, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondent.

PLCCS 2007 SUPREME COURT 46 #

2007 PLC (C.S.) 46

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

DAWOOD ALI

Versus

SUPERINTENDENT OF POLICE and others

Civil Petition No.810-L of 2000, decided on 28th February, 2003.

(On appeal from the judgment dated 2-2-2000 passed by the Punjab Service Tribunal, Lahore, in Appeal No.474 of 1998).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Acquittal in criminal case---Effect---Civil servant being police officer was guilty of the charge that while intoxicated he along with others had created awfully awkward situation in public area, and liquor was also recovered from him---After departmental proceedings he was removed from service and the penalty was maintained by Service Tribunal---Plea raised by the civil servant was that he had been exonerated from the same charge by Criminal Court, therefore, there was no justification to impose major penalty of removal from service---Validity---Departmental penalty was imposed on the civil servant not on account of criminal proceedings but as a consequence of departmental inquiry in which he was found guilty of the charge---Departmental and criminal proceedings could be taken simultaneously and independent of each other---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.

Inspector-General of Police, Police Headquarters Office, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 207; Rashid Mehmood v. Additional Inspector-General of Police and 2 others 2002 SCMR 57 and Arif Ghafoor v. Managing Director, H.M.C. Taxila and others PLD 2002 SC 13 distinguished.

Deputy Inspector-General of Police v. Anis-ur-Rehman Khan PLD 1985 SC 134; Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar PLD 1987 SC 195; Muhammad Tufail v. Assistant Commissioner/Collector 1989 SCMR 316; Amir Abdullah v. Superintendent of. Police and others 1989 SCMR 333; Muhammad Nazir v. The Superintendent of Police, Toba Tek Singh and others 1990 SCMR 1556; Talib Hussain v. Anar Gul Khan and others 1993 SCMR 2177; Muhammad Izharul Ahsan Qureshi v. Messrs P.I.A.C. 1994 SCMR 1608 and Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others 1996 SCMR 315 rel.

Ch. Mushtaq Ahmed Khan, Senior. Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2007 PLC (C.S.) 76

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and Falak Sher, JJ

GOVERNMENT OF THE PUNJAB

Versus

MUHAMMAD MUNIR AKHTAR and others

Civil Petitions Nos.2964-L to 2973-L of 2003, decided on 10th February, 2004.

(On appeal from the judgment dated 13-10-2003 passed by the Punjab Service Tribunal in Appeals Nos.2915, 14, 16, 17 and 2814, 15, . 2871, 2872, 2873 and 2874 of 2002).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Direction by Service Tribunal---Holding of fresh inquiry---Service Tribunal, jurisdiction of---Service Tribunal after having examined the case of civil servant and controversy involved in depth, had opined that an independent Inquiry Committee consisting of two Chief Engineers of established repute and integrity should be constituted to examine the complete record along with the defence to be taken by the civil servant whereafter report would be submitted to the Authority for adjudication---Contention of civil servant was that the Tribunal could not remand the case after giving such direction---Validity---Judgment passed by Service Tribunal was just and proper and no interference was called for by Supreme Court in exercise of jurisdiction under Art.212(3) of the Constitution---Leave to appeal was refused.

Mian Ghulam Hussain Advocate Supreme Court for Petitioner (in all cases).

Nemo for Respondents.

PLCCS 2007 SUPREME COURT 83 #

2007 P L C (C.S.) 83

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Khalil-ur-Rehman Ramday, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, Lahore and 3 others

Versus

SHAUKAT FARHAN and 9 others

Civil Petitions Nos.204-L to 213-L of 2004, decided on 18th February, 2004.

(On appeal from the judgment dated 8-11-2003 of the Punjab Service Tribunal, Lahore passed in Appeals Nos.466-L/CS to 474-L/CS of 2002).

Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---

----Rr. 3, 4 & 5---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Remand of case by Service Tribunal---Factual controversy---Failure to give opportunity of hearing---Respondents were Meter Readers in Water and Power Development Authority and were working on contract basis---On the allegations of fake meter readings, contracts of respondents were not extended---Service Tribunal allowed the appeals filed by the respondents and remanded the case to Authorities for deciding the same after providing opportunity of hearing to the respondents---Validity---Respondents' contracts were not extended because there were fake meter reading in their record---Service Tribunal had rightly remanded the case to the Authority at least to establish on record by evidence all allegations of fake meter reading on which ground their contracts were not extended---Such aspect of the case could only be set at naught in a regular inquiry after affording opportunity of hearing to the respondents and examining the record in accordance with law---Merely on the basis of allegation of fake meter reading, it was not possible to hold that the allegation was proved against them---Since the Authority itself had imposed a condition for extending or otherwise of the contracts of the respondents, it had an obligation to prove the same accordingly---Service Tribunal was justified in remanding the case to the Authority for proceeding afresh---Leave to appeal was refused.

Aurangzeb Mirza, Advocate Supreme Court and Mehmoodul Islam, Advocate-on-Record for Petitioners (in all C.Ps.).

Syed Aaqa Asif Jafri, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents (in C.Ps. Nos.204, 206, 207, and 210-L to 213-L of 2003).

Nemo for Respondents (in Civil Petitions. Nos. 205, 208 and 209-L of 2003).

Date of hearing: 18th February, 2004.

PLCCS 2007 SUPREME COURT 103 #

2007 P L C (C.S.) 103

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Khalil-ur-Rehman Ramday, JJ

DISTRICT EDUCATION OFFICER, KASUR and others

Versus

Miss JAMIL AKHTAR

Civil Petition for Leave to Appeal No.2051-L of 2003, decided on 17th January, 2004.

(On appeal from the judgment, dated 27-5-2003 of the Punjab Service Tribunal, Lahore, passed in Appeal No.239 of 2003).

Punjab Removal From Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3 & 10---Punjab Service Tribunals Act (IX of 1974), S. 4---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Petition had been filed against judgment of Tribunal whereby appeal filed by employee against her removal from service had been accepted---Contention, that employee was not appointed by Recruitment Committee, but was appointed on recommendation of Deputy Commissioner, had not been taken by authorities before Service Tribunal nor the letter on basis of which Deputy Commissioner recommended employee's appointment, was mentioned by authorities in their parawise comments---Said contention for the first time could neither be considered nor permitted to be raised at belated stage---Dismissal of Deputy District Education Officer who verified the appointment of employee as correct, could not be considered as circumstance to non-suit respondent at belated stage particularly when no such plea was taken before Service Tribunal---Petition was dismissed and leave refused.

Muhammad Riaz Lone, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 17th February, 2004.

PLCCS 2007 SUPREME COURT 109 #

2007 P L C (C.S.) 109

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

S.M. AFZAL-UR-REHMAN

Versus

FEDERATION OF PAKISTAN and others

C.P.L.A. No.883-K of 2002, decided on 9th February, 2004.

(On appeal from judgment of the Federal Service Tribunal, dated 7-6-2002 passed in Appeal No.107(K)(CS) of 2002).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Time-barred departmental representation---Civil servant was dismissed from service and his departmental representation was dismissed being barred by 185 days---Appeal before Service Tribunal was also dismissed---Plea raised by the civil servant was that letter of removal from service was received by his brother with whom the civil servant was not at good terms---Validity---If a person. had been negligent and indolent in prosecuting his remedy before the proper forum, he was not entitled to indulgence of the Court muchless enlargement of time by 185 days, more particularly, when his departmental representation was not entertained by the department itself---By not exercising discretion in favour of civil servant, the Tribunal neither acted illegally nor unreasonably---No strong ground was made for interfering with the exercise of discretion by the Tribunal which was neither unfair nor illegal or unreasonable---Once departmental appeal had been rejected as barred by time, service appeal would be incompetent, unless for sufficient reasons, Tribunal deemed it fit to condone the delay---Service Tribunal had decided otherwise to which Supreme Court declined to take any exception---No question of law of public importance was spelt out from the circumstances---Leave to appeal was refused.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 9th February, 2004.

PLCCS 2007 SUPREME COURT 118 #

2007 P L C (C.S.) 118

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN through Chairman and another

Versus

AKIF JAVED, EX-EXTRA-ASSISTANT DIRECTOR, A.D.B.P., ISLAMABAD

Civil Petition No.2222 of 2001, decided on 3rd January, 2003.

(On appeal from the judgment of Federal Service Tribunal, Islamabad dated 31-3-2001 passed in Appeal No.139/R-CE of 2000).

Agriculture Development Bank of Pakistan Officers Service (Efficiency and Discipline) Regulations, 1975---

---R. 4(b)(ii)---Service Tribunals Act (LXX of 1973), Ss.4 & 5---Constitution of Pakistan (1973), Art.212(3)---Modification of penalty---Jurisdiction of Service Tribunal---Illegal gratification---Proof---Regular inquiry, non-holding of--Respondent was employee of Agriculture Development Bank of Pakistan and he was dismissed from service---Allegation against the respondent was that he obtained illegal gratification from a person for providing him employment in the bank---Show-cause notice was issued to the respondent by Authorized Officer on the basis of finding of Inquiry Officer in preliminary inquiry in which neither the respondent nor the complainant was examined---Competent authority without holding regular inquiry and providing proper opportunity to the respondent to defend himself, passed final order of dismissal from service on the ground that the respondent acknowledged receipt of money from the complainant---Service Tribunal accepted the appeal partially and modified the penalty of dismissal from service into compulsory retirement---Validity---Neither the respondent was. in a position to appoint any person in the bank nor the bank had placed any material on record to show that the respondent was competent to make appointment in the Bank and it was not established from the existing record as to what was the true nature of transaction between the respondent and the complainant and in what manner the respondent misused his official position or brought disrepute to the Bank---Service Tribunal in exercise of its jurisdiction under S.5 of Service Tribunals Act, 1973, rightly modified the punishment of dismissal from service to compulsory retirement---Scope of appeal before Supreme Court under Art.212(3) of the Constitution was very limited to interfere in such matters---Service Tribunal had not exercised jurisdiction in arbitrary manner while granting relief of converting the penalty of dismissal from service into compulsory retirement and Supreme Court refused to interfere in the same---Leave to appeal was refused.

Pakistan Railways v. Ghulam Rasul 1997 SCMR 1581 rel.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners.

M. Aslam Uns, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Respondent.

Date of hearing: 3rd January, 2003.

PLCCS 2007 SUPREME COURT 125 #

2007 P L C (C.S.) 125

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Abdul Hameed Dogar, JJ

SHAHID MASOOD MALIK

Versus

HABIB BANK LTD. and another

Civil Petitions Nos.74 and 75 of 2002, decided on 30th January , 2003.

(On appeal from the judgment dated 24-11-2001 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.1886(R) of 1999 and 117(R)(CE) of 2000).

Rules Governing the Service of Employees of Habib Bank Limited---

----R. 37---Service Tribunals Act (LXX of 1973), Ss.2-A. & 4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Misconduct---Misappropriation of accounts---Departmental and criminal proceedings---Scope---Acquittal from Criminal Court---Petitioner being bank employees, on the charge of withdrawal of amounts from different accounts fictitiously was dismissed from service---Appeal before Service Tribunal was also dismissed---Plea raised by the petitioner was that he had been acquitted by Criminal Court from the criminal case registered against him on the same allegation---Validity---Such acquittals did not give to a delinquent clean certificate absolving him from departmental proceedings--Both the proceedings were conducted respecting the case registered against the delinquent while departmental proceedings were regarding the charges of malversation and misconduct---Both the proceedings could go side by side as their nature was totally different---Penalty imposed on a civil servant as a consequence of departmental proceedings under Efficiency and Discipline Rules, after the accused officer had been acquitted of a criminal charge, was not barred---Competent authority was empowered to impose upon an employee of bank major penalty of dismissal from service under R.37 of Rules Governing the Service of Employees of Habib Bank Limited, if the employees was found guilty---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

Inspector-General of Police, Punjab, Lahore and others v. Muhammad Tariq 2001 SCMR 789 ref.

Ch. Sadiq Muhammad Warraich, Advocate Supreme Court instructed by Imtiaz Muhammad Khan Advocate-on-Record for Petitioner.

Ajmal Kamal, Advocate Supreme Court instructed by Ejaz Muhammad Khan Advocate-on-Record for Respondents.

Date of hearing: 6th February, 2003.

PLCCS 2007 SUPREME COURT 134 #

2007 P L C (C.S.) 134

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Muhammad Bashir Jehangiri and Munawar Ahmed Mirza, JJ

FURQAN HABIB and others

Versus

GOVERNMENT OF PAKISTAN and others

Civil Petitions Nos.2049-L to 2051-L of 1998, decided on 21st April, 1999.

(a) Service Tribunals Act (LXX of 1973)---

---S. 7-Limitation Act (IX of 1908), S.14---Provisions of S.14 of Limitation Act, 1908 not applicable to proceedings under Service Tribunals Act, 1973.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 ref.

(b) Limitation Act (IX of 1908)---

---S. 5---Condonation of delay---Prosecution of a wrong remedy in a wrong Court---Not sufficient ground for condonation of delay.

Ghiasuddin Shaikh and others v. Federation of Pakistan, Civil Petitions Nos.507-K to 513-K of 1998 ref.

Khan Muhammad v. Senior Superintendent of Police, Rawalpindi and others 1989 SCMR 589 and Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296 rel.

Riyasat Ali Ch. Advocate Supreme Court and Ch. M. Khan Mehtab, Advocate-on-Record for Petitioners.

Raja Haq Nawaz, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing: 21st April, 1999.

PLCCS 2007 SUPREME COURT 140 #

2007 P L C (C.S.) 140

[Supreme Court of Pakistan]

Present: Saiduzzman Siddiqui and Nasir Aslam Zahid, JJ

GHIASUDDIN SHAIKH and others

Versus

FEDERATION OF PAKISTAN and others

Civil Petitions Nos.507-K to 513-K of 1998, decided on 25th January, 1999.

(a) Service Tribunals Act (LXX of 1973)---

---Ss. 2-A & 4---Civil Servants Act (LXXI of 1973), S.2(b)---Employees covered by S.2-A of Service Tribunals Act, 1973---Status of---Such employees would not come within ambit of definition of "civil servant" as given in S.2(b) of Civil Servants Act, 1973---Such employees would be treated in service of Pakistan for limited purpose of providing a forum for agitating their grievances by way of appeal---Exceptions mentioned in S.2(1)(b) of Civil Servants Act, 1973, thus, would not be attracted to cases of such employees---Principles.

Abdul Jabbar and others v. Sui Southern Gas Company Ltd. Civil Petitions Nos.391-K to 456-K of 1998; Civil Petitions Nos. 483-K to 484-K of 1998 and Syed Aftab Ahmed v. K. E. S. C. C. P. L. A. No.1305-K of 1997 fol.

(b) Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Termination of service---Employee of Pakistan State Oil Company---Appointment on contract basis---Termination of service on payment of one month salary in lieu of notice as per terms of appointment letter---Service Tribunal dismissed appeal of employee---Validity---Relationship of Company and its employees was that of master and servant in absence of any statutory provision or rule---No exception could be taken to the view found favour with Tribunal in absence of violation of any provision of law or statutory rules---Employee would be entitled to receive one month's salary in lieu of notice plus other dues, if any payable under terms of appointment or internal rules of company---Supreme Court dismissed petition and refused leave to appeal.

Lt. Col. Shujauddin Ahmad v. Oil and Gas Development Corporation 1971 SCMR 566; Chairman of East Pakistan Development Corporation v. Rustam Ali PLD 1966 SC 848; Lahore Central Cooperative Bank Limited v. Pir Saifullah Shah PLD 1959 SC (Pak.) 210; Zainul Abedin v. Multan Central Cooperative Bank Limited PLD 1966 SC 455; Shahid Khalil v. P.I.A.C., Karachi 1971 SCMR 568; A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748; R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146; Muhammad Yousaf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Anwar Hussain v. The Agricultural Development Bank of Pakistan and others 1992 SCMR 1112; Riazuddin v. Chairman, Pakistan International Airlines Corporation and 2 others .PLD 1992 SC 531; Chairman WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 346; Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. through President, Karachi and 2 others 1995 SCMR 453; Habib Bank Limited and others v. Syed Zia-ul-Hassan Kazimi 1998 SCMR 60 and United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68 rel.

Muhammad Muzaffarul Haq, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record for Petitioners.

Raja Haq Nawaz, Advocate Supreme Court and M.S. Ghaury, Advocate-on-Record for Respondent No.2.

Date of hearing: 25th January, 1999.

PLCCS 2007 SUPREME COURT 150 #

2007 P L C (C.S.) 150

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

Messrs PAKISTAN STATE OIL CO. LTD.

Versus

MUNAWAR A. SHEIKH and others

Civil Petitions Nos.1586 to 1590 of 2001, heard on 14th January, 2002.

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Termination of service---Employee of Pakistan State Oil Company---Appointment of trainee as regular employee subject to the condition that his appointment would depend entirely on discretion of company and could be terminated any time without notice---Termination of service of employee without assigning any reason---Reinstatement of employee in service by Service Tribunal---Validity---Plea of company was that Tribunal declined relief to other employees, whose services were terminated in same manner and Supreme Court refused leave to appeal to such employees; and that Supreme Court in another judgment had observed that employees on contract basis in different organizations could not claim that after expiry of period of contract, they would be deemed to be permanent employees---Supreme Court granted leave to appeal.

Ghiasuddin Sheikh and others v. Federation of Pakistan and others Civil Petitions Nos.507-K to 513-K of 1998 ref.

(b) Constitution of Pakistan (1973---

----Art. 212(3)---Service Tribunal Act (LXX of 1973), S.4---Petition for leave to appeal---Suspension of judgment of Service Tribunal reinstating employee in service, prayer for---Assumption of duty by employee after passing of impugned judgment---Effect---Suspension of impugned judgment at such belated stage would not be fair and just.

Raja Haq Nawaz Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Nemo for Respondents.

PLCCS 2007 SUPREME COURT 157 #

2007 P L C (C.S.) 157

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

C.A. No.1071 of 2000

HUSSAIN BADSHAH and another

Versus

AKHTAR ZAMAN and others

(On appeal from judgment of Peshawar High Court, D.I. Khan Bench, dated 30-5-2000 passed in Writ Petition No.89 of 1999).

C.A. No.1072 of 2000

RASTA BAZ KHAN and others

Versus

GOVERNMENT OF N.-W.F.P. and others

(On appeal from judgment of Peshawar High Court, D.I. Khan Bench, dated 30-5-2000 passed in Writ Petition No.79 of 1999).

C.A. No.1073 of 2000

INAYATULLAH KHAN and others

Versus

AKHTAR ZAMAN and others

(On appeal from judgment of Peshawar High Court, D.I. Khan Bench, dated 30-5-2000 passed in Writ Petition No.89 of 1999).

C.A. No.1903 of 2000

DIRECTOR OF EDUCATION and others

Versus

BABER ELAHI and others

(On appeal from judgment of Peshawar High Court, Abbottabad Bench, dated 12-5-2000 passed in Writ Petition No.374 of 1998).

C.A. No.1904 of 2000

GOVERNMENT OF N.-W.F.P. and others

Versus

RAQIAZ KHAN and others

(On appeal from judgment of Peshawar High Court, D.I. Khan Bench, dated 30-5-2000 passed in Writ Petition No.79 of 1999).

C.A. No.1905 of 2000

GOVERNMENT OF N.-W.F.P. and others

Versus

AKHTAR ZAMAN and others

(On appeal from judgment of Peshawar High Court, Abbottabad Bench, dated 30-5-2000 passed in Writ Petition No.89 of 1999).

C.A. No.1906 of 2000

GOVERNMENT OF N.-W.F.P. and others

Versus

MUHAMMAD IMTIAZ KHAN and others

(On appeal from judgment of Peshawar High Court, D.I. Khan Bench, dated 30-5-2000 passed in Writ Petition No.66 of 1999).

C.A. No.1907 of 2000

GOVERNMENT OF N.-W.F.P. and others

Versus

FAROOQ KHAN and others

(On appeal from judgment of Peshawar High Court, D.I. Khan Bench, dated 30-5-2000 passed in Writ Petition No.31 of 2000).

C.A. No.1908 of 2000

GOVERNMENT OF N.-W.F:P. and others

Versus

MUHAMMAD IQBAL and others

(On appeal from judgment of Peshawar High Court, D.I. Khan Bench, dated 30-5-2000 passed in Writ Petition No.134 of 1999).

C.A. No.1910 of 2000

KIFAYATULLAH and others

Versus

GOVERNMENT OF N.-W.F.P. and others

(On appeal from judgment of Peshawar High Court, Peshawar Bench, dated 12-4-2000 passed in Writ Petition No.660 of 1999).

Civil Appeals Nos.1071, to 1073, 1903 to 1908 and 1910 of 2000, decided on 28th May, 2002.

(a) Constitution of Pakistan (1973)---

----Art. 25---Civil service---Appointment as teacher---Candidates qualifying from institutions other than Elementary P.T.C. Colleges managed and controlled by Provincial Government---Principle of discrimination---Applicability---Since all educational institutions situated within the country are duly recognized by University Grants Commission and their certificates and diplomas are given equivalence by the Commission, there is no warrant for discriminating the candidates qualifying from the institutions other than Elementary P.T.C. Colleges managed and controlled by the Provincial Government.?

Oliver Brown v. Board of Education of Topeka 347 U.S. 483, `349 U.S.294; Sharin Munir v. Government of Punjab PLD 1990 SC 95 and Attiyya Bibi Khan v. Federation of Pakistan 2001 SCMR 1161 rel.

(b) Constitution of Pakistan (1973)---

----Art. 199---Judgment passed by High Court in Constitutional jurisdiction---Effect---Past and closed transaction, doctrine of---Applicability---Policy adopted by Provincial Government regarding appointment of teachers was declared by Full Bench of High Court as void ab initio and without lawful authority---Appellants were appointed prior to such declaration and their appointments were on merits--Grievance of appellants was that their appointments could not be affected by the declaration given by Full Bench of High Court---Validity---Declaration to the effect that all appointments made under the earlier policy were illegal, void and without lawful authority could not sustain being against the law as the judgment of High Court would operate prospectively and not retrospectively adversely affecting the rights already accrued to the teachers appointed before the declaration of law by Full Bench of High Court---Appointments made prior to the judgment were neither inherently illegal nor ultra vires the law---Appellants were amongst the candidates who qualified from Elementary P.T.C. Colleges of N.-W.F.P., Allama Iqbal Open University and other Institutions on merits and having regard to the qualifications obtained by such' persons, many of the appellants were even not party to the Constitutional petitions before the High Court---Vested rights of the appellants could not be disturbed to their disadvantage---Case of appellants was protected by the doctrine of past and closed transaction and the same could not be re?opened---Appeal was allowed.?

Zaffar Ali Shah v. Federation of Pakistan PLD 2000 SC 869 and Pakistan through Secretary, Ministry of Finance v. Muhammad Hamayatullah PLD 1969 SC 407 rel.

Abdul Aziz Kundi, Advocate-on-Record for Petitioners (in C.A. No.1071 of 2000).

Muhammad Ibrahim Satti, Advocate Supreme Court for Respondents (in C.A. No.1071 of 2000).

Sardar Shaukat Hayat, Additional Advocate-General, N.-W.F.P. for Government of N.-W.F.P. (in C.A. No.1071 of 2000).

Saeed Baig, Advocate Supreme Court for Petitioners (in C.A. No.1072 of 2000)

Sardar Shaukat Hayat, Additional Advocate-General, N.-W.F.P. for Government of N.-W.F.P. (in C.A. No.1072 of 2000).

Muhammad Ibrahim Satti, Advocate Supreme Court for Respondents (in C.A. No.1072 of 2000).

Abdul Aziz Kundi, Advocate Supreme Court (in C.A. No.1073 of 2000).

Sardar Shaukat Hayat, Additional Advocate-General, N.-W.F.P. for Government of N.-W.F.P. (in C.A. No.1073 of 2000).

Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan Advocate-on-Record for Respondents (in C.A. No.1073 of 2000).

Sardar Shaukat Hayat, Additional Advocate-General, N.-W.F.P. for Petitioners (in C.A. No.1903 of 2000).

Abdur Rashid Awan, Advocate Supreme Court for Respondents (in C.A. No.1903 of 2000).

Sardar Shaukat Hayat, Additional Advocate-General N.-W.F.P. for Petitioners (in C.A. No.1904 of 2000).

Arif Khan, Advocate Supreme Court, Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in C.A. No.1904 of 2000).

Sardar Shaukat Hayat, Additional Advocate-General N.-W.F.P. for Petitioners (in C.A. No.1905 of 2000).

Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in C.A. No.1905 of 2000).

Sardar Shaukat Hayat, Additional Advocate-General N.-W.F.P. for Petitioners (in C.A. No.1906 of 2000).

Arif Khan, Advocate Supreme Court, Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in C.A. No.1906 of 2000).

Sardar Shaukat Hayat, Additional Advocate-General N.-W.F.P. for Petitioners (in C.A. No.1907 of 2000).

Arif Khan, Advocate Supreme Court, Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in C.A. No.1907 of 2000).

Sardar Shaukat Hayat, Additional Advocate-General N.-W.F.P. for Petitioners (in C.A. No.1908 of 2000).

Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in C.A. No.1908 of 2000).

Muhammad Waris Khan, Advocate Supreme Court for Petitioners (in C.A. No.1910 of 2000).

Sardar Shaukat Hayat, Additional Advocate-General N.-W.F.P. for Respondents (in C.A. No.1910 of 2000).

Date of hearing: 28th May, 2002.

PLCCS 2007 SUPREME COURT 165 #

2007 P L C (C.S.) 165

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

PROVINCE OF PUNJAB through Secretary, Agriculture Department, Lahore and others

Versus

SHAHID PERVAIZ and others

Civil Petitions Nos.3376-L to 3378-L, 3526-L, 3540-L and 3580-L of 2002, decided on 17th December, 2002.

(On appeal from the judgment dated 12-7-2002 of the Punjab Service Tribunal, Lahore passed in Appeals Nos.580 of 2000, 668 of 2000, 841 of 2000 and 668 of 2000).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Financial loss, recovery of---Fraudulent withdrawal of G.P. Fund---Petitioners along with other Government officials were allegedly responsible for withdrawal of G.P. Fund fraudulently---Authorities held the petitioners liable to return the amount so withdrawn---Service Tribunal in appeal maintained the finding of the authorities---Plea raised by the petitioners before High Court was that they being not party to the fraud and cashier being the only person responsible to have caused loss to the State and being beneficiary of the withdrawal, recovery of specific amount from them could not be justified---Authorities contented that the penalties imposed by them were justified---Validity---Leave to appeal was granted by Supreme Court to further examine the entire case.

Muhammad Sharif Butt, Advocate Supreme Court with Rao Muhammad Yusuf Khan, Government Advocate-on-Record for Petitioners (in C.Ps. Nos.3376-L to 3378/L of 2002).

Hafiz Tariq Naseem, Advocate Supreme Court with M. Aslam Chaudhry, Advocate-on-Record for Respondents (in C.Ps. Nos.3376-L to 3378/L of 2002).

Ch. Muhammad Hussain Naqshbandi, Advocate Supreme Court with Muhammad Ozair Chughtai, Advocate-on-Record for Petitioner (in C.P. No.3526-L of 2002).

Nemo for Respondents (in C.P. No.3526-L of 2002).

Faizur Rehman, Advocate-on-Record for Petitioner (in C.P. No.3540-L of 2002).

Nemo for Respondents (in C.P. No.3540-L of 2002).

Hafiz Tariq Nasim, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioner (in C.P. No.3580-L of 2002).

Nemo for Respondents (in C.P. No.3580-L of 2002).

Date of hearing: 17th December, 2002.

PLCCS 2007 SUPREME COURT 171 #

2007 PLC (C.S.) 171

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD SHAFIQUE

Versus

DEPUTY DIRECTOR FOOD and another

Civil Petition No.153-L of 2001, decided on 24th February, 2003

(On appeal from the judgment dated 14-11-2000 passed by the Punjab Service Tribunal, Lahore, in Appeal No.719 of 1999).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

---R. 4---Constitution of Pakistan (1973), Arts.13 & 212(3)---Pecuniary loss caused by civil servant---Dismissal from service and recovery of loss---Principle of double jeopardy---Applicability---Civil servant was held responsible for shortfall in wheat from Government godown---After departmental inquiry, civil servant was dismissed from service and recovery of cost of wheat was also imposed on him---Order passed by authorities was maintained by Service Tribunal---Plea raised by the civil servant was that double penalty of dismissal from service and recovery of amount for loss of wheat was in violation of R.4 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Validity---Purpose of order of recovery was to recompose the loss caused to the Government---Depending upon facts and circumstances of a particular case, order of dismissal from service could not absolve a civil servant of his liability to make good the pecuniary loss caused to the Government or other organization by or under which he was employed---Principle of double jeopardy was not attracted to the facts and circumstances of the present case---Supreme Court declined to take any exception to the findings of fact recorded by departmental authorities and Service Tribunal in the matter after taking into consideration the plea of the civil servant---No substantial question of law of public importance was involved so as to warrant interference by Supreme Court---Leave to appeal was refused.

Deputy Director, Food v. Akhtar Ali 1997 SCMR 343 distinguished.

Law of Master and Servant, 7th Edn. p.67 by Charles Manley Smith ref.

Mian Mahmood Hussain, Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-Record for Petitioner.

Nemo for Respondents.

PLCCS 2007 SUPREME COURT 175 #

2007 P L C (C.S.) 175

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

DEPUTY DIRECTOR, FOOD BAHAWALPUR and others

Versus

KHALID MEHMOOD JABLA

Civil Petition No.3828-L of 2002, decided on 8th January, 2003.

(On appeal from the judgment dated 28-8-2002 of the Punjab Service Tribunal, Lahore, passed in Appeal No.2814 of 2001).

Punjab Service Tribunals Act (IX of 1974)---

----S. 5---Constitution of Pakistan (1973), Art.212(3)---Modification of penalty---Jurisdiction of Service Tribunal---Plea raised by the authorities was that the Service Tribunal could not set aside the penalty of compulsory retirement awarded to civil servant---Validity---Leave to appeal was granted by Supreme Court to consider; whether major penalty of retirement could have been set aside which was imposed after completion of all mandatory formalities as envisaged under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 by the Service Tribunal without any lawful justification by ignoring the factual findings of departmental authority.

Aziz Ahmed Chughtai, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners.

Respondent in person.

PLCCS 2007 SUPREME COURT 179 #

2007 P L C (C.S.) 179

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ

ABDUL SALIM

Versus

GOVERNMENT OF N.-W.F.P. through Secretary, Department of Education Secondary, N.-W.F.P., Peshawar and others

Civil Petition No.408-P of 2001, decided on 26th December, 2003.

(On appeal from the judgment, dated 27-8-2001 passed by N.-W.F.P. Service Tribunal, Peshawar in Service Appeal No.1440 of 1997).

North-West Frontier Province Service Tribunals Act (I of 1974)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Termination from service---Grounds of termination, non-mentioning of---Change of Government---Irregularities committed at the time of appointment---Effect---Civil servant was appointed as school teacher in the year, 1995 and had been receiving salary for two years regularly---In year 1997, the authorities terminated the services of the civil servant and his departmental appeal was also dismissed---Service Tribunal maintained the decision of the authorities---Validity---In the order of removal from service it was only mentioned that the appointment of the civil servant was found illegal, ab initio void and against the prescribed rules but no details in that regard were mentioned therein---Absence of such reasons by itself was sufficient to dub the removal as mala fide---If there had been any specific reason and same had been intimated to the civil servant through show-cause notice, the civil servant might have been able to defend himself---For the irregularities committed by department itself regarding appointment of candidate, the appointees could not be condemned subsequently with the change of heads in department or on the upper level---Government being institution in perpetuity, its orders could not be reversed simply because the heads had changed---Such act of departmental authorities was unjustified when the candidate was otherwise fully qualified to hold the job---Supreme Court converted the petition for leave to appeal into appeal, set aside the order of termination and reinstated the civil servant in service---Appeal was allowed.

Petitioner in person.

Assistant Director (Education) for Respondents.

Date of hearing: 26th December, 2003.

PLCCS 2007 SUPREME COURT 182 #

2007 P L C (C.S.) 182

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

RIAZ HUSSAIN

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and 2 others

Civil Petition No.3071 of 2003, decided on 14th November, 2005.

(On appeal from the judgment of the Punjab Service Tribunal, Rawalpindi, dated 27-9-2003 passed in Appeal No.1081 of 2003).

(a) Criminal trial---

----Investigation, defect in---Effect---Such defect might not be a valid ground for discharged of an accused, but insufficiency in evidence would definitely be a strong ground to discharge him.

(b) Punjab Police (Efficiency and Discipline) Rules, 1975---

----Rr. 3 & 4(1)(b)(v)---Dismissal from service---Misconduct, charge of---Omission of civil servant as Investigating Officer of a criminal case to obtain signatures of witnesses on recovery memo. of stolen vehicle---Magistrate discharged accused for want of incriminating evidence on record to connect him with commission of offence of theft---Initiation of disciplinary proceedings against civil servant (1.0.) on charge of negligence for such omission---Penalty of dismissal imposed by departmental authority was upheld by Service Tribunal---Validity---Magistrate had discharged accused for want of evidence and not only for defect in recovery memo. or in investigation---Such omission might or might not be a factor to damage prosecution case, but in absence of any evidence that such omission was intentional, same would be treated as bona fide mistake, which might not constitute an act of misconduct---Supreme Court accepted appeal, set aside impugned judgment and reinstated civil servant in service without back benefits treating the intervening period as leave without pay.

Roy Muhammad Nawaz Khan Kharal, Advocate Supreme Court for Petitioner.

Syed Sajjad Hussain Shah, A.A.-G. for Respondents.

Date of hearing: 14th November, 2005.

PLCCS 2007 SUPREME COURT 184 #

2007 P L C (C.S.) 184

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

SHER MUHAMMAD SHEHZAD and 22 others

Versus

DISTRICT HEALTH OFFICER and another

Civil Petitions Nos.403-L to 425-L of 2002, decided on 3rd May, 2002.

(On appeal from the judgment, dated 5-12-2001 of the Punjab Service Tribunal Lahore, passed in Appeals Nos.539-542, 545-552, 558, 561-563, 565-567, 569 and 570 of 1999).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Reinstatement---Recovery of back-benefits---Order of dismissal of civil servants from service was set aside by Service Tribunal but back-benefits were declined by treating intervening period as extraordinary leave---Validity---Nothing was available on record that the civil servants were gainfully employed anywhere during the relevant period, therefore, it would be unjust and harsh to deprive them of back-benefits for the period for which they remained out of job without any fault from their side---Civil servants were proceeded' under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, for no fault on their part and their services were terminated in an arbitrary manner without providing any reason---Salaries of the civil servants would not be withheld for the intervening period when they remained out of service due to whimsical and arbitrary actions of the functionaries---Civil servants had every right to recover their arrears---Supreme Court converted petition for leave to appeal into appeal and allowed the civil servants all back-benefits---Appeal was allowed.

Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs PLD 1970 SC 415 fol.

Hafiz Tariq Nasim, Advocate Supreme Court for Petitioners (in all C.Ps.).

Ms. Fowzi Zafar, Assistant Advocate-General for Respondents.

PLCCS 2007 SUPREME COURT 188 #

2007 PLC (C.S.) 188

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

CHIEF MINISTER, N.-W.F.P., PESHAWAR and 2 others

Versus

MUHAMMAD ZIAUL HAQ, SUB-ENGINEER, HARIPUR

Civil Appeal No.1289 of 2001, decided on 29th November, 2005.

(On appeal from the judgment of the Service Tribunal, N.-W.F.P., Peshawar in Appeal No.876 of 1998, dated 10-2-2001).

(a) North-West Frontier Province Service Tribunals Act (I of 1974)---

----S. 4---Constitution of Pakistan (1973), Art.212 (3)---Leave to appeal was granted by Supreme Court to consider; whether documents/letters etc. relied upon by Service Tribunal justified order of reinstatement of civil servants; and whether appeal before Service Tribunal was time-barred or not.

(b) North-West Frontier Province Service Tribunals Act (I of 1974)---

----S. 4---Reinstatement in service---Concessional statement of departmental representatives---Effect---Misreading and non-reading of evidence---Civil servant being a Sub-Engineer was compulsorily retired from service on the allegation of embezzling government funds---Service Tribunal allowed the appeal and reinstated civil servant in service---Contention of civil servant was that in view of the position explained by departmental representatives before Service Tribunal, the finding of Inquiry Officer and the order passed on the basis of inquiry report had no legal value---Validity---Inquiry Officer having considered the reply of civil servant to the charge held him guilty---Contention of civil servant had no substance and Service Tribunal instead of appreciating factual position on record, decided the matter on the basis of concessional statement made by departmental representatives---Service Tribunal failed to decide the appeal in proper exercise of jurisdiction---Finding of Service Tribunal not based on record was suffering from the defect of misreading and non-reading or evidence brought on record in support of charge---Judgment passed by Service Tribunal was set aside and order of compulsory retirement passed by departmental authority was restored---Appeal was allowed.

Muhammad Issa Khan, Additional Advocate-General for Appellant.

Muhammad Munir Peracha, Advocate Supreme Court for Respondent.

Date of hearing: 29th November, 2005.

PLCCS 2007 SUPREME COURT 194 #

2007 P L C (C.S.) 194

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

Syed ASHFAQ HUSSAIN SHAH

Versus

N.E.D. UNIVERSITY OF ENGINEERING AND TECHNOLOGY, KARACHI and others

Civil Review Petition No.17-K of 2005 in Civil Petition No.772-K of 2004, decided on 7th March, 2006.

(On review from the judgment, dated 20-7-2005 in Civil Petition No. 72-K of 2004 passed by this Court).

Sindh Service Tribunals Act (XV of 1973)---

----S. 4---N.E.D. University of Engineering and Technology Act (III of 1977), Ss.28(iv), 38 & 46(1)(a)---N.E.D. University of Engineering and Technology, Karachi, Employees (Efficiency and Discipline) Statutes, 1990-,--Constitution of Pakistan (1973), Arts.188 & 212(3)---Review of Supreme Court judgment---Retirement under duress and compulsion---Retraction---Scope---Departmental appeal not dismissed on ground of limitation---Service appeal filed within time not to be dismissed by Service Tribunal---Proper and relevant case-law not referred to in judgment sought to be reviewed--Petitioner being an employee of University submitted an application before Vice-Chancellor for proceeding on Leave Preparatory to Retirement w.e.f. 16-12-2002, which was accepted, allowing petitioner to retire on completion of 25 years qualifying service w.e.f. 13-10-2003---Petitioner filed departmental appeal on 31-7-2003 for withdrawal of order of retirement but his appeal was rejected---Petitioner preferred an appeal before Sindh Service Tribunal, stating therein that option exercised by him for retirement on completion of 25 years qualifying service was not voluntary but under duress---Service Tribunal allowed appeal and held that appeal before Tribunal was competent, though departmental appeal was barred by time having not been rejected on the said ground and further that exercise of option by petitioner for retirement was not voluntary but under duress---Appeal filed thereagainst by the University was accepted by Supreme Court---Petitioner filed review petition against the judgment of Supreme Court, contending therein that Supreme Court had erred in law in holding that Service Tribunal dismissed appeal on ground that departmental appeal of petitioner was barred by limitation which finding was contrary to decision of larger Bench of Supreme Court and that Supreme Court erred in law in holding that option once exercised was not to be revoked in the circumstances of the present case---Petitioner further contended that departmental appeal of civil servant having not been dismissed on ground of limitation, service appeal filed within time could not be dismissed by Service Tribunal, on ground of being barred by limitation and that no inflexible rule of law existed that option of retirement once exercised was final and could not be retracted under any circumstance---Validity---Record showed that Vice-Chancellor had made up his mind to knock down a subordinate employee of University---Option to proceed on Leave Preparatory to Retirement being not voluntary rather obtained under duress and compulsion, the same was void ab initio and subsequent orders passed in series could not have legal effect---Petitioner's retirement was to become effective from 13-10-2003 whereas he made appeal prior to it i.e. on 31-7-2003 to withdraw his option for Leave Preparatory to Retirement and to continue in service---Plea of involuntary retirement having been obtained under duress and compulsion was not attended to by Supreme Court in detail, therefore, the same being apparent on the face of record was to be a good ground for review---Service Tribunal's finding as to involuntary retirement obtained under duress and compulsion, based on cogent reasons, was not to be interfered with by Supreme Court as the same was not a question of law but of fact which had attained finality after finding of Service Tribunal, especially when there was no misreading and non-reading of the facts of the case--Departmental appeal of civil servant having not been dismissed on ground of limitation, service appeal filed within time could not be dismissed by Service Tribunal as an incompetent appeal---Where departmental appeal was not disposed of on ground that same was barred by time, the plea of said bar could not be agitated before Service Tribunal or before Supreme Court as the said plea being mixed question of fact and law was not to be agitated before Supreme Court as it required an inquiry--Relevant case-law having not been brought to the notice of Supreme Court at the time of hearing of petition, this lapse was to provide ground for review of judgment sought to be reviewed---No inflexible rule of law existed that option of retirement once exercised was final and could not be retracted under any circumstance---Power of rescinding an order till decisive step was taken, was not principle of law but if the order was illegal then perpetual rights were not to be taken on the basis of illegal order---Observations, reasoning and law showed that there was error apparent on the face of record and admitted facts were not attended to by Supreme Court, hence, there were sufficient grounds for review of judgment sought to be reviewed---Judgment reviewed was reversed/set aside---Judgment of Service Tribunal was restored--Leave to appeal was decline.?

Muhammad Jan Marwat and another v. Nazir Muhammad and 17 others 1997 SCMR 287; and Abdul Nahi v. Government of West Pakistan through Chief Secretary, Lahore and another PLD 1973 Quetta 4 rel.

Government of Sindh through Secretary S&GAD and another v. Raja Muhammad Inayat Khan 2000 SCMR 1964; Noor-uz-Zaman Ahmad v. Punjab Province 1984 PLC (C.S.) 864; Noor Ahmed v: Divisional Forest Officer, Faisalabad 1984 PLC (C.S.) 1085 and Muhammad Rafique v. Pakistan Railways 1995 SCMR 904 ref.

State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426; Anwarul Haq v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others 1995 SCMR 1505; The Chairman, P.I.A.C. and others v. Nasim Malik PLD 1990 SC 951; Province of Punjab through Deputy Director Food, Rawalpindi v. Muhammad Iqbal, Ex-Food grains Inspector 1984 SCMR 334; Secretary Government of Punjab, Food and Cooperation Department v. Shamoon Bahadur PLD 1979 SC 835; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Jai Ram v. Union of India AIR 1954 SC 584 and Anwar Muhammad v. General Manager, Pakistan Railways, Lahore 1995 SCMR 950 distinguished.

The Chairman, P.I.A.C. and others v. Nasim Malik PLD 1990 SC 951 dissented from.

Petitioner in person.

Muhammad Tasneem, Advocate Supreme Court and Ahmadullah Faruqui, Advocate-on-Record for Respondents.

Date of hearing: 9th January, 2006.

PLCCS 2007 SUPREME COURT 207 #

2007 P L C (C.S.) 207

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

Miss RAHAT AFROZE

Versus

STATE LIFE INSURANCE CORPORATION and others

C.P.S,L.A. No.766-L of 2003, decided on 21st July, 2005.

(On appeal from the order of the Federal Service Tribunal, dated 21-1-2003. passed in M.P. No.10 of 2003).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal filed by petitioner was dismissed by Service Tribunal and petitioner instead of challenging order of Service Tribunal before Supreme Court, filed a representation for correction of said order---Such representation was not competent before Service Tribunal as after having disposed of appeal, it had no jurisdiction to entertain the same---Application of petitioner, in that respect, was rightly dismissed by Service Tribunal---Petition for leave to appeal before the Supreme Court filed after more than four months from impugned order was also barred by time especially when no application for condonation of delay was filed by petitioner--Petition for leave to appeal was dismissed and leave declined.

Asmat Khan, Advocate Supreme Court with A.H. Masood, Advocate-on-Record for Petitioner.

Tanvir Ahmad, Advocate-on-Record for Respondents.

PLCCS 2007 SUPREME COURT 215 #

2007 P L C (C.S.) 215

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

KARACHI ELECTRIC SUPPLY CORPORATION LTD.

Versus

Saikh MUHAMMAD JAVAID

Civil Petition No.132-K of 2005, decided on 31st August, 2005.

(On appeal from the judgment, dated 2-11-2004 passed by Federal Service Tribunal, Islamabad (Camp at Karachi) in Appeal No.959(K) of 1999).

Government Servants (Efficiency and Discipline) Rules, 1973---

----R. 4(1)(b)(i)---Constitution of Pakistan (1973), Art.212(3)---Misconduct---Reversion from Pay Group VI to Pay Group IV---Service Tribunal recorded a finding of fact that no show-cause notice was issued to the employee before ordering his reversion from Pay Group VI to Pay Group IV and that no show-cause notice was issued to him in the wake of inquiry---Inquiry Officer was too hasty without any justification and employee was deprived of his defence by not providing proper opportunity to participate in the inquiry into alleged misconduct in a case of major penalty involving allegations of fact which were denied by the employee---Service Tribunal proceeded to determine whether imposition of major penalty was completely illegal and unwarranted---Employer could not show that findings recorded by Service Tribunal were based on no material or were contrary to evidence furnished by the parties---Employer was not in a position to point out any question of law of public importance for intervention of Supreme Court---In absence of any serious defect or inherent infirmity, no question of law of public importance for grant of leave to appeal within the purview of Art.212(3) of the Constitution, having been made out, leave to appeal was refused and petition dismissed.

Talmiz S. Burecy, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioner.

Khalid Javed, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Respondent.

PLCCS 2007 SUPREME COURT 217 #

2007 P L C (C.S.) 217

[Supreme Court of Pakistan]

Present: Javed Iqbal, Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

CHAIRMAN PAC BOARD, KAMRA and 3 others

Versus

AZHAR HUSSAIN

Civil Petition No.3095 of 2003, decided on 23rd September, 2005.

(On appeal from the judgment, dated 11-9-2003 of Federal Service Tribunal, Islamabad, passed in Appeal No.697(R)CS of 2000) .

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art. 212 (3)---Advance increments, grant of---Principles---Civil servant after his retirement from Pakistan Air Force was re-employed---Authorities declined two advance increments to the civil servant---Service Tribunal allowed the appeal of civil servant and directed the authorities that the civil servant was entitled to continuation of advance increments after he was reemployed---Validity---Leave to appeal was granted by Supreme Court to consider; whether duplicate benefit of advance increments could be availed twice i.e. in the former service and subsequent service; whether merger of two advance increments granted to civil servant in his substantive pay and pension would make him further entitled to obtain two advance increments again front his subsequent employment; whether instructions as contained in Establishment Division O.M. 10/52/95/R-2, dated 18-7-1996, Finance Division (Reg. Wing) O.M. No.F-5(4)R-3/96, dated 16-4-1996, Finance Division O.M. No.F-4(7)Reg.4/72, dated 1-1-1973, O.M. No.F-4(11)Reg.7/72, dated 11-1-1973 and O.M. No.F-6 (6-R.3)84/615, dated 1.8.1984, should have been considered by Service Tribunal while deciding the controversy; whether civil servant pursuant to his appointment letter, would be governed by Government Servants (Conduct) Rules, 1964, Government Servants (Efficiency and Discipline) Rules, 1973 and other Government orders/instructions; whether principle of locus poenitentiae could be pressed into service in view of the dictum laid down by Supreme Court in its various judgments; and what would be the impact of Finance Division O.M. No.F-4(7)Reg.4/92, dated 1-1-1973.

Chairman Selection Committee v. Wasif Zamir Ahmad 1997 SCMR 15 and Chairman Minimum Wage Board v. Fayyaz Khan Khattak 1999 SCMR 1004 ref.

Raja Muhammad Irshad, D.A.-G. and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Ch. Afrasiab Khan, Advocate Supreme Court for Respondent.

Date of hearing: 23rd September, 2005.

PLCCS 2007 SUPREME COURT 220 #

2007 P L C (C.S.) 220

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

ASIF ALI BUTT

Versus

PROVINCE OF PUNJAB and others

Civil Petition No.574-L of 2001, decided on 3rd October, 2005.

(On appeal from the judgment passed by Punjab Service Tribunal, Lahore in Appeal No.46 of 2000, dated 1-1-2001).

Punjab Civil Servants Act (VIII of 1974)---

---Ss. 7, 8 & 9---Punjab Service Tribunals Act (IX of 1974), S.4---Pakistan Railways Police Act (VII of 1977), S.5---Constitution of Pakistan (1973), Art.2.12(3)---Petition for leave to appeal---Promotion and transfer---Suspension of lien---Restoration of original seniority---Petitioner working in Punjab Police, was transferred in Pakistan Railways Police in 1977 on his own request and written consent---Petitioner was promoted there as Senior Clerk in 1980 and was granted Selection grade (BS-9) in 1987---Lien of petitioner in Punjab Police was suspended in 1981---Petitioner on 21-9-1987, was reverted to Punjab Police as Junior Clerk on his own request and written consent and he was promoted as Senior Clerk on 26-4-1988 in Punjab Police---Representation of petitioner against suspension of his lien in Punjab Police and his prayer for restoration of his original seniority having been rejected and his appeal also having been dismissed by Service Tribunal, he had filed petition for leave to appeal before the Supreme Court against order of the Service Tribunal---Petitioner who initially was working in Punjab Police, was transferred to Railways Police on his own request and written consent, his confirmation in Pakistan Railways, would entail termination of his lien on the post previously held by him-Petitioner, otherwise had approached Departmental Authority with a representation against his suspension of lien after more than 10 years---No substantial question of law of public importance having been raised hi the petition, same was dismissed.

Petitioner in person.

Nemo for Respondents.

PLCCS 2007 SUPREME COURT 222 #

2007 P L C (C.S.) 222

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ

Miss RASHIDA KHATOON

Versus

SECRETARY M/O INDUSTRIES AND PRODUCTION and 3 others

Civil Petition No.637-K of 2005, decided on 30th September, 2005.

Removal From Service (Special Powers) Ordinance (XVII of 2000)--

----Ss. 2(b) & 3---Constitution of Pakistan (1973), Art.212(3)---Misconduct---Imposition of penalty of reduction to lower rank---Allegation was that employee being a junior officer with intention to bring her grievance to notice of the concerned Authorities had made representation directly to the Chairman with expectation of an appropriate relief and such act of petitioner was considered as misconduct---Validity---Act of a person which was prejudicial to the good order or service discipline or unbecoming of an officer and gentleman, was definitely a misconduct, but mere sending representation by a subordinate directly to a senior officer like Chairman, was not as such an act which could be treated prejudicial to good order or service discipline or unbecoming of a good officer and a gentleman---Nothing objectionable was found in the language used by petitioner in letter in question which could be treated insulting or derogatory against senior officers constituting an act of indiscipline or of unbecoming of a good officer in terms of definition of misconduct---Filing of such a representation to bring to the notice of higher Authorities the personal problem being faced by petitioner, would not be ipso facto termed as misconduct---Petition was converted into appeal and same was allowed--Order imposing penalty of reduction to lower rank, was set aside.

Muhammad Muzaffarul Haque, Advocate Supreme Court for Petitioner.

M.G. Dastigir, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Respondents Nos.2 to 4.

Date of hearing: 30th September, 2005.

PLCCS 2007 SUPREME COURT 229 #

2007 P L C (C.S.) 229

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas, and Hamid Ali Mirza, JJ

Lt. MUQUDDUS HAIDER

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman, Islamabad

Civil Petition No.2016 of 2003 converted into appeal and appeal decided on 20-10-2004.

(On appeal from the judgment, dated 18-6-2003 in Writ Petition No.1034 of 2003 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

(a) Notification---

----Notification or Government's Policy---Retrospectivity---Notification or Government's policy could not take effect retrospectively---Principles.

(b) Constitution of Pakistan (1973)---

----Art. 27, proviso---Civil Service of Pakistan, vacancies in---Regional/Provincial quotas, reservation of---Object stated.

Reservation/quota system has been introduced to secure adequate representation in the service of qualitative inadequacy of representation for the persons belonging to socially and educationally backward class or area, so that they should have adequate representation in the lowest rung of service for which they aspire to secure adequate representation in the selection posts in the services as well, as such quota is being approved by the Government so as to give effect to the intention of the Constitution-makers in order to make adequate safeguards for the advancement of backward classes and to secure their adequate representation in the services.

----S. 7(3)---Central Service of Pakistan, vacancies in---Selection of candidates against reserved quotas by Federal Public Service Commission---Commission recommending petitioner for appointment against such seat founding him better on merit than respondent on basis of policy decision of Government---Validity---Such appointment had not violated or infringed provisions of the Constitution---Respondent was not legally entitled to be appointed against such seat.

(d) Federal Public Service Commission Ordinance (XLV of 1977)---

(e) Federal Public Service Commission Ordinance (XLV of 1977)---

----S. 7(3)---Constitution of Pakistan (1973), Arts.27 & 199--- Central Service of Pakistan, vacancies in---Selection of candidates against reserved quotas---Federal Public Service Commission not recommended petitioner for appointment against such seat---Constitutional petition by petitioner against such decision of Commission without impleading successful candidate as party---Acceptance of constitutional petition by High Court---Failing of intra-Court appeal by successful candidate and its dismissal on technical ground for being not competent---Delay in filing petition for leave to appeal before Supreme Court by successful candidate---Validity---Successful candidate had made out sufficient cause for condoning such delay---Supreme Court condoned delay in circumstances.

Haji Hussain Haji Dawood through Legal Heirs and others v. M.Y. Kherati 2002 SCMR 343 rel.

Ch. Muhammad Shall v. Settlement and Rehabilitation Commissioner, Lahore and others PLD 1972 Lah. 187 and Abdul Aziz and others v. Sheikh Abdur Rahim and others PLD 1984 SC 164 distinguished.

Sahibzada Anwar Hamid, Advocate Supreme Court for Petitioner.

Ms. Nahida Mehboob Elahi, Deputy Attorney-General for Respondents Nos.1 and 2.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Respondent No.3.

Date of hearing: 20th October, 2004.

PLCCS 2007 SUPREME COURT 238 #

2007 P L C (C.S.) 238

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, Muhammad Nawaz Abbasi and Falak Sher, JJ

MUHAMMAD IBRAHIM

Versus

PAKISTAN OIL SEED DEVELOPMENT BOARD and others

Civil Appeal No.85 of 2000, decided on 9th March, 2005.

(On appeal from the judgment, dated 10-6-1999 of the Federal Service Tribunal Islamabad passed in Appeals Nos.871 and 873-R of 1999).

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A, 4 & 6---Limitation Act (IX of 1908), S.5---Termination of service---Abatement of proceedings---Condonation of delay---Petitioner being contract employee his service was terminated, which was challenged by him before High Court in Constitutional jurisdiction---During pendency of petition before High Court, S.2-A was inserted in Service Tribunals Act, 1973---Petitioner, instead of invoking right of appeal immediately before Service Tribunal, filed such appeal after dismissal of his petition by High Court---Service Tribunal did not condone the delay and dismissed the appeal of petitioner being time barred---Validity---High Court having no jurisdiction in such matters, on insertion of S.2-A in Service Tribunals Act, 1973, did not dispose of such cases soon after the change in law, so that the aggrieved persons could approach Service Tribunal within the statutory period provided under the law---Inaction on the part of High Court for a considerable period created confusion in the matter---On the insertion of S.2-A in Service Tribunals Act, 1973, the position in respect of abatement of service matters pending before other forums and retrospective operation of S.2-A of Service Tribunals Act, 1973, was not clear and doubt was ultimately removed by Supreme Court, therefore, question of limitation was required to be considered in each case on the basis of its own facts---Petitioner, due to misunderstanding, did not approach Service Tribunal prior to disposal of Constitutional petition by High Court which would be a sufficient circumstance to bring the case within the ambit of S.5 of Limitation Act, 1908---Non-disposal of Constitutional petition by an express order on its abatement by High Court within the period provided under law for filing appeal before Service Tribunal, would be an additional circumstance for condonation of delay---Petitioner was not negligent in pursuing his remedy as he filed appeal before Service Tribunal immediately on disposal of his Constitutional petition by High Court---Dismissal of appeal by Service Tribunal as barred by time was not proper in circumstances---Judgment passed by Service Tribunal was set aside and the case was remanded to Service Tribunal for decision of appeal on merits.

Lt. Col. (Rtd.) Muhammad Siddique v. Allama Iqbal Open University, Islamabad Civil Petitions Nos.483 and 685 of 1989; Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92; Muhammad Yaqub v. Pakistan Petroleum Ltd. and another Civil Appeal No.998 of 1999; Ghulam Sarwar Bhutto v. Chief Secretary to Government of Sindh and others 2000 SCMR 104; Malik Mumtaz Ahmad and others v. Federal Service Tribunal and others 2000 SCMR 832; Pakistan National Council of Arts v. Azimul Waqar and 2 others 2001 SCMR 1561; Aftab Ahmad v. K.E.S.C. 1999 SCMR 197 and Rehmatullah v. Postmaster-General 2003 SCMR 705 rel.

Appellant in person.

Nasir Sneed Sheikh, D.A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 9th March, 2005.

PLCCS 2007 SUPREME COURT 243 #

2007 P L C (C.S.) 243

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassadduq Hussain Jillani, JJ

ALLAH BAKHSH FOODGRAIN SUPERVISOR (Retd.)

Versus

DIRECTOR FOOD, PUNJAB, LAHORE and others

Civil Petition No.207-L of 2001, decided on 30th August, 2004.

(On appeal from the judgment/order, dated 23-11-2000 passed by Punjab Service Tribunal, Lahore in Appeal No.421 of 1988).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----Rr. 4(b) & 8---Recovery of loss----Maxim: audi alteram partem---Applicability---On the allegation of shortfall in wheat stock, departmental inquiry was initiated against civil servant---Charge of loss to Government was not proved during the inquiry and such findings of Inquiry Officer were endorsed by Authorized Officer but higher authorities imposed penalty of recovery of loss from civil servant---Validity---Inquiry Officer did not recommend for recovery of loss against civil servant and if the Authority wanted to exercise its powers under R.8 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, it was incumbent upon it to give sound reasons, on the basis of facts available on record or it should have invoked some principle of law in order to come to the conclusion that the civil servant was liable to make good the loss---Order imposing penalty of recovery of loss was not based upon sound reasons and was not maintainable in the eye of law---Civil servant was condemned unheard in violation of principles of natural justice, enshrined in maxim: audi alteram partem---Supreme Court converted petition for leave to appeal into appeal and set aside the orders passed by Service Tribunal and departmental authorities and directed the authorities to refund the loss recovered from the civil servant---Appeal was allowed.

Zafar Ali v. Deputy Director Food, Multan Region 1982 SCMR 1864 fol.

Hafiz Tariq Naseem, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Aziz Ahmed Chughtai, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate-on-Record (absent) for Respondents.

PLCCS 2007 SUPREME COURT 247 #

2007 P L C (C.S.) 247

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

MUHAMMAD IDRIS KHAN

Versus

SECRETARY/CHAIRMAN, MINISTRY OF RAILWAYS, ISLAMABAD and 5 others

Civil Petition No.2078 of 2004 and C.A. No.1016 of 2005, decided on 20th May, 2005.

(On appeal from the judgment of Federal Service Tribunal dated 3-8-2004 passed in Appeal No.259(K)CS of 2001).

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 3---Civil Servants Act (LXXI of 1973), S.2 (b)---Government Servants (Efficiency and Discipline) Rules, 1973, R.2 (4)---Dismissal from service---Act of misconduct---Departmental inquiry, dispensing with---Principles---Civil servant was dismissed from service, without holding regular inquiry, on the allegation of writing letter to Minister containing allegations of corruption and embezzlement of Government funds by the officers named therein---Appeal of civil servant against dismissal order was dismissed by Service Tribunal---Plea raised by civil servant was that writing of letter to Minister was not an act of misconduct---Validity---Letter sent by civil servant was not proper and notwithstanding the correctness of allegations contained therein, it was an act of indiscipline which could not be approved and tolerated---Civil servant was not dealt with fairly as he was awarded major penalty of dismissal from service without proper inquiry---Except in special circumstances, a civil servant must not be awarded major penalty of dismissal from service without proper inquiry and providing him fair opportunity to explain his position---No extraordinary circumstance existed calling for dispensation of inquiry---Summary proceedings, and imposition of major penalty of dismissal from service without inquiry would suggest element of bias and unfair treatment in the matter of quantum of sentence---Supreme Court converted petition for leave to appeal into appeal and converted penalty of dismissal from service into minor penalty of censure and directed the authorities to reinstate civil servant in service with all back-benefits.

(b) Civil service---

----Misconduct---Penalties, award of---Object and scope---Penalties in service law are to give choice to departmental authorities to determine quantum of punishment in the light of nature of misconduct---Concerned authorities may, in their discretion, award major or minor penalties but such power must not be exercised in an unjust and arbitrary manner.

----Departmental proceedings---Procedure---Departmental authorities may not be obliged to strictly follow the procedure of law in the manner as is observed by judicial forums but still they must observe general principles of law and act independently to ensure fair treatment.

Dr. Babar Awan, Advocate Supreme Court for Petitioner.

M. Ishaq Khan, Advocate Supreme Court for Respondents.

Date of hearing: 20th May, 2005.

PLCCS 2007 SUPREME COURT 253 #

2007 P L C (C.S.) 253

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

JAVAID AKHTAR CHEEMA and another

Versus

DIRECTORATE OF FLORICULTURE (TRAINING AND RESEARCH), PUNJAB, LAHORE and another

Civil Petitions Nos.3312/L and 3313/L of 2002, decided on 15th June, 2005.

(On appeal from the judgment of Punjab Service Tribunal, dated 27-6-2002 passed in Appeals Nos.920 and 921 of 2000, respectively).

Constitution of Pakistan (1973)---

----Art. 212(3)---Adjustment of employees in a new Directorate---When Directorate of Floriculture and Directorate of Horticulture Research Institute for Floriculture and Landscaping were merged and new Directorate of Floriculture (Training and Research), was established petitioners, who were employed as Agriculture Officers, in pursuance of policy of adjustment of employees in new Directorate, opted for their adjustment, but they were not considered for the reason that under the rules they did not possess requisite academic qualification---Appeals filed by petitioners before Service Tribunal having been dismissed, petitioners had filed petition for leave to appeal---Leave to appeal was granted to consider questions that whether absorption/adjustment in a wing of department or in an independent department, could or could not be claimed as of right as terms and conditions of service and the Service Tribunal could competently adjudicate matters; that whether Service Tribunal, in exercise of its appellate jurisdiction in respect of terms and conditions of civil servants under S.4 Service Tribunals Act, 1973, could declare the rules in question ultra vices the law; that what was the prescribed qualification for the posts in new Directorate and whether petitioners possessed requisite qualifications for absorption/adjustment against posts in said Directorate and were entitled to be adjusted accordingly.

Abdul Hafeez Cheema, Advocate Supreme Court and Muhammad Ozair Chughtai, Advocate-on-Record for Petitioners.

Ms. Salma Malik, A.A.-G. Punjab and Rao M. Yousaf Khan, Advocate-on-Record for Respondents.

Date of hearing: 15th June, 2005.

PLCCS 2007 SUPREME COURT 255 #

2007 P L C (C.S.) 255

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Saiyed Saeed Ashhad, JJ

N.E.D. UNIVERSITY OF ENGINEERING AND TECHNOLOGY

Versus

Syed ASHFAQ HUSSAIN SHAH

C.P. No.772-K of 2004, decided on 20th July, 2005.

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal---Limitation---Time-barred departmental appeal---Grievance of authorities was that departmental representation of civil servant was barred by limitation and on the basis of such representation Service Tribunal could not reinstate him in service---Validity---Service Tribunal should have taken note of the fact that appeal before departmental authority being time-barred, appeal by civil servant before Service Tribunal was incompetent---Civil servant proceeded on leave preparatory to retirement on 16-12-2002 and preferred appeal before departmental authority on 31-7-2003, which, on the face of record, was time-barred---Mere fact that department did not notice such fact would not make the service appeal of civil servant within time---Appeal before Service Tribunal being time-barred and incompetent, Supreme Court converted petition for leave to appeal into appeal and set aside the order passed by Service Tribunal---Appeal was allowed.

The Chairman P.I.A.C. and others v. Nasim Malik PLD 1990 SC 951 and State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426 rel.

Pakistan Automobile Corporation Limited through Chairman v. Mansoor-ul-Haque and 2 others 2004 SCMR 1308 ref.

(b) Civil service---

----Leave preparatory to retirement---Revoking of option---Principle---Where civil servant, after enjoying substantial part of such leave revokes same, such revocation cannot be permitted.

Province of Punjab through the Deputy Director Food, Rawalpindi Region v. Muhammad Iqbal 1984 SCMR 334 and Secretary to Government of Punjab, Food and Cooperative Department v. Shamoun Bahadur 1998 SCMR 1536 rel.

Muhammad Tasnim, Advocate Supreme Court and Ahmadullah Faruqi, Advocate-on-Record for Petitioner.

Respondent in person.

PLCCS 2007 SUPREME COURT 258 #

2007 P L C (C.S.) 258

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

FEDERAL PUBLIC SERVICE COMMISSION

Versus

Mrs. ZAKIA LATIF and others

Civil Petition No.1596 of 2003, decided on 25th July, 2005.

(On appeal from the judgment, dated 28-5-2003 passed by the Lahore High Court, Rawalpindi Bench in Writ Petition No.2088 of 1999).

Constitution of Pakistan (1973)---

----Art. 185 (3)---Regularization of ad hoc employees---Change of category---Ministry of Education prepared two categories of ad hoc employees for the purpose of their regularization---Civil servant was placed in category No.1 by Ministry, for her regularization---Federal Public Service Commission changed the category of civil servant and declined to recommend her for regularization---High Court in constitutional jurisdiction directed the authorities to treat the civil servant in the category in which she was placed by the Ministry---Validity---Authorities failed to justify changing of the category in which the civil servant was placed by the Ministry---Policy of regularization was made by Government and its concerned Ministry, a component of Government, was in better position to allocate proper category to its employees in the light of the policy---Supreme Court declined to take any exception to the order passed by High Court in its constitutional jurisdiction---Leave to appeal was refused.

Nasir Saeed Sheikh, D.A.-G. and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Naseer Ahmad, Advocate Supreme Court for Respondents.

Date of hearing: 25th July, 2005.

PLCCS 2007 SUPREME COURT 260 #

2007 P L C (C.S.) 260

[Supreme Court of Pakistan]

Present: Javed Iqbal and Mian Shakirullah Jan, JJ

WAZIR ALI SOOMRO

Versus

WATER AND POWER DEVELOPMENT AUTHORITY and others

Civil Appeal No.583 of 2003, decided on 15th September, 2005.

(On appeal from the judgment of the Federal Service Tribunal, Lahore, dated 12-2-2000 passed in Appeal No.1473/L of 1999).

Pakistan Water and Power Development Authority Act (XXXI of 1958)---

----S. 17(1-A(a)---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement---Failure to give show-cause notice---Non-compliance of provisions of S.17(1-A)(a) of Pakistan Water and Power Development Authority Act, 1958---Non-speaking order---Effect---Civil servant was compulsorily retired from service without giving any reason and without any show-cause notice---Appeal filed by civil servant was dismissed by Service Tribunal---Validity---Appeal was decided by Service Tribunal in a perfunctory and slipshod manner by means of a non-speaking order without assigning any reason---No show cause was issued to the civil servant, which should have been issued pursuant to the dictum laid down by Supreme Court in various judgments---Authorities assured that disciplinary proceedings would be initiated afresh strictly in accordance with law and the guidelines enumerated by Supreme Court, in line with the provisions enumerated in S.17(1-A)(a) of Pakistan Water and Power Development Authority Act, 1958---Judgment of Service Tribunal being laconic was set aside and authorities were allowed to initiate fresh disciplinary proceedings in accordance with law.

WAPDA v. Zulfiqar Ali PLD 1988 SC 693; Ejaz Nabi Abbasi v. WAPDA 1992 SCMR 774; Pakistan and others v. Public-at-large and others PLD 1987 SC 304 and WAPDA v. Sikandar Ali Abro 1998 SCMR 137 rel.

Hafiz Tariq Nasim, Advocate Supreme Court and Tanveer Ahmed, Advocate-on-Record (absent) for Appellant.

Faiz-ur-Rehman, Advocate-on-Record for Respondents.

Date of hearing: 15th September, 2005.

PLCCS 2007 SUPREME COURT 271 #

2007 P L C (C.S.) 271

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Bhatti and Mian Shakirullah Jan, JJ

GOVERNMENT OF PAKISTAN through Secretary M/o Finance and others

Versus

ASIF ALI and others

Civil Appeals No.1781 and 1782 of 2001, decided on 11th October, 2005.

(On appeal from the judgment, dated 28-4-2001 passed by the Federal Service Tribunal in Appeal No.908(L) of 1997 in both cases).

(a) Constitution of Pakistan (1973)---

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider; whether findings of Service Tribunal reversing the findings of departmental authority were based on evidence on record or were based on conjectures or surmises.

(b) Constitution of Pakistan (1973)---

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider that if order of reinstatement of civil servant in service was upheld, could he be declined in law the arrears of pay for the period he remained out of service in the facts and circumstances of the case.

----Misconduct---"Departmental" and "criminal proceedings"--Distinction---Prosecution before a regular Court for charge of criminal misconduct and departmental proceedings for charge of misconduct being governed by different laws and rules of procedure, are entirely different---Misconduct under Government Servants (Efficiency and Discipline) Rules, 1973, means conduct prejudicial to the good order of service, discipline or of unbecoming of an officer and a gentleman and contrary to Government Servants (Conduct) Rules, 1964 whereas charge of criminal misconduct is based on the element of mens rea and criminal intent---Criminal Courts in the light of strict observance of law of evidence, have to judge admissibility of evidence to hold a person guilty of criminal charge but in case of charge of misconduct, departmental authorities are not required to follow technicalities of law-Unless essential elements of components of a criminal offence are proved through evidence, direct or circumstantial, the conviction is not possible, whereas in case of misconduct, departmental authorities may not follow complicated procedure of Criminal Courts and rule of appraisal of evidence, rather such authorities in the light of general principle of law may determine question of guilt or innocence of a person by giving him a fair and adequate opportunity of nearing in accordance with law.

(d) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 2(a) & 5(1)(ii)---Criminal Procedure Code (V of 1898), S.265-K---Misconduct---Misappropriation of Government funds---Acquittal by criminal court---Effect---Civil servant while posted as Officer Incharge at National Savings Centre found involved in financial irregularities---Departmental authority passed his order of dismissal from service---In addition to departmental proceedings, civil servant was also proceeded against for criminal charge of misappropriation of government money, in which he was acquitted under S.265-K, Cr.P.C.---Service Tribunal on the basis of acquittal from criminal charge, set aside order of dismissal of civil servant and directed his reinstatement in service---Validity---Standard of evidence and method of proving charge of misconduct and criminal charge before a regular Court was not the same, therefore, acquittal of a person from charge of criminal misconduct by criminal Court might be a relevant factor to ascertain nature of misconduct in departmental proceedings but could not be, as such, a reason to exonerate him from the charge of misconduct under Government Servants (Efficiency and Discipline) Rules, 1973---Charge of misconduct against civil servant was based on allegations of corruption and misuse of office for personal gain and in support thereof direct evidence was brought on record but Service Tribunal for misconception of law, without taking into consideration such evidence, proceeded to set aside order passed by competent authority on the basis of judgment of criminal court---Judgment passed by Service Tribunal was set aside---Appeal was allowed.

Raja Muhammad Irshad, D.A.-G. and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in Civil Appeal No.1781 of 2001).

Nemo for Respondent (in Civil Appeal No.1781 of 2001).

Appellants in person (in Civil Appeal No.1782 of 2001).

Raja Muhammad Irshad, D.A.-G. and Ch. Akhtar Ali, Advocate-on-Record for Respondent (in Civil Appeal No.1782 of 2001).

PLCCS 2007 SUPREME COURT 278 #

2007 P L C (C.S.) 278

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Raja Fayyaz Ahmed, JJ

MUHAMMAD YAQOOB

Versus

DISTRICT POLICE OFFICER, DISTRICT SAHIWAL and 2 others

Civil Petition No.3027 of 2003, decided on 10th November, 2005.

(On appeal from the judgment, dated 2-9-2003 of the Punjab Service Tribunal, Lahore passed in Appeal No.1939 of 2003).

(a) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3 & 10---Punjab Police (Efficiency and Discipline) Rules, 1975, R.12---Constitution of Pakistan (1973), Art.212 (3)---Compulsory retirement from service---Second revision before departmental authorities---Maintainability---Civil servant was compulsorily retired from service on the charges of gross negligence and misconduct---Civil servant preferred departmental appeal against the penalty imposed by authorities, which was also dismissed---Instead of assailing order of departmental authorities before Service Tribunal, civil servant preferred revision under R.12 of Punjab Police (Efficiency and Discipline) Rules, 1975, which was also rejected---Civil servant filed appeal before-Service Tribunal, which appeal was dismissed being time-barred---Plea raised by civil servant was that his appeal before Service Tribunal was within limitation as the same was filed after rejection of revision under R.12 of Punjab Police (Efficiency and Discipline) Rules, 1975---Validity---Civil servant could not seek shelter behind R.12 of Punjab Police (Efficiency and Discipline) Rules, 1975, and could not take its benefit for the reason that no such right was given in special law having overriding effect---Revision contemplated by Punjab Police (Efficiency and Discipline) Rules, 1975, though had given right to Inspector General of Police to revise the order of departmental authority in the circumstances given in the rule itself but the rule did not vest any right in accused civil servant to file a revision as a matter of right---Finding of Service Tribunal was perfectly in accord with the spirit of Punjab Police (Efficiency and Discipline) Rules, 1975, as well as with the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.

(b) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----S. 10---Constitution of Pakistan (1973), Art. 212 (3)---Appeal before Service Tribunal---Limitation---Computation---Penalty of compulsory retirement was imposed on civil servant, under Punjab Removal from Service (Special Powers) Ordinance, 2000---Departmental appeal was filed on 21-12-2002, and appeal before Service Tribunal was filed on 21-8-2003---Service Tribunal dismissed the appeal being barred by limitation---Validity---Civil servant, under proviso to S.10 of Punjab Removal from Service (Special Powers) Ordinance, 2000, was to wait only for a period of sixty days whereafter he was to file appeal within thirty days---Civil servant had only a period of ninety days commencing from the filing of appeal on 21-12-2002, as the appellate authority failed to decide his appeal within sixty days---Civil servant was in fact supposed to-have filed appeal before Service Tribunal on 21-3-2003, which, instead was, filed on 21-8-2003---Delay in filing of appeal before Service Tribunal was of five months---Service Tribunal rightly refused to condone the delay and dismissed the appeal---Leave to appeal was refused.

Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Syed Sajjad Hussain Shah, Assistant Advocate-General for Respondents.

Date of hearing: 10th November, 2005.

PLCCS 2007 SUPREME COURT 281 #

2007 P L C (C.S.) 281

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

DAUD SHAH and another

Versus

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY and others

Civil Appeals Nos.1387 and 1388 of 2004, decided on 10th November, 2005.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 3-10-2002 passed in Appeals Nos.51 and 52(P) CE of 2001).

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 1,---Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, Rr.4 & 5---Constitution of Pakistan (1973), Art.212 (3)---Leave to appeal was granted by Supreme Court to consider the contentions of the employees that in view of S.11 of Removal from Service (Special Powers) Ordinance, 2000, promulgated w.e.f. 27-5-2000, the authorities were devoid of any power to take disciplinary proceedings against them under Pakistan Water And Power Development Authority (Efficiency and Discipline) Rules, 1978---Employees further contended that facts and circumstances of the case called for holding of regular inquiry into the charges against them, therefore, recourse to procedure of Efficiency and Discipline Rules, adopted by authorities was unwarranted.

Pakistan International Airlines Corporation through Managing Director PIAC, Head Office, Karachi Airport, Karachi v. Ms. Shaista Naheed 2004 PLC (C.S.) 344 ref.

(b) Pakistan Water and Power Development Authority (Efficiency and Discipline) Rules, 1978---

----Rr. 4 & 5---Negligence---Direct responsibility of loss---Proof---Employees were officers in Water and Power Development Authority and were proceeded against on the allegation of loss caused to the Authority in payment of wages to labour at site---After departmental proceedings, employees were awarded major penalty of two steps down in their time scale for a period of two years coupled with recovery of loss---Penalty imposed in departmental proceedings was maintained by Service Tribunal---Validity---No evidence was available on record to suggest that the employees were directly responsible for causing loss to exchequer but since they were found careless in the matter of payment of wages, therefore, Supreme Court declined to take any exception to the finding of Service Tribunal to the extent of charge of negligence against them---Order relating to penalty of reduction to two steps in time scale for a period of two years was justified but to burden the employees with recovery of loss was not proper---Supreme Court set aside order of departmental authority regarding recovery of loss of Government money from the employees and maintained judgment of Service Tribunal to the extent of penalty of reduction to two steps in time scale for a period of two years---Judgment of Service Tribunal was modified accordingly---Appeal was partly allowed.

I.G. HQ. Frontier Corps v. Ghulam Hussain 2004 SCMR 1397 ref.

Raja Muhammad Asghar Khan, Advocate Supreme Court with Muhammad Ahmed Zaidi, Advocate-on-Record for Appellants (in both appeals).

Muhammad Munir Peracha, Advocate Supreme Court with Ch. Muhammad Akram, Advocate-on-Record for Respondents (in both appeals).

Date of hearing: 10th November, 2005.

PLCCS 2007 SUPREME COURT 297 #

2007 P L C (C.S.) 297

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

DIVISIONAL FOREST OFFICER and another

Versus

GULAB DIN

Civil Petition No.2587-L of 2003, decided on 3rd October, 2005.

(On appeal from the judgment passed by Punjab Service Tribunal, Lahore in Appeal No.1046 of 2003, dated 7-8-2003).

Punjab Civil Servants Pension Rules, 1963---

----R. 18(a)---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Stoppage of pension---Earlier an inquiry was conducted against respondent for causing loss to Government in which findings were returned in favour of respondent---Subsequently a show-cause notice was sent to respondent under R.18(a) of Punjab Civil Servants Pension Rules, 1963 for stoppage of his pension and petitioner directed recovery of amount from respondent---Appeal of respondent was dismissed by Appellate Authority, but respondent succeeded before Service Tribunal---Findings of Service Tribunal were that case was one of no evidence particularly in view of inquiry report absolving respondent from misconduct---No substantial question of law of public importance, petition for leave to appeal was dismissed.

M.A. Aziz, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

PLCCS 2007 SUPREME COURT 298 #

2007 P L C (C.S.) 298

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ

Haji NOOR AHMED and others

Versus

GOVERNMENT OF PUNJAB and others

Civil Appeal No.2128 of 2004 and Civil Petitions Nos.1178/L and 1179/L of 2004, decided on 13th October, 2005.

(On appeal from the judgment, dated 2-4-2003 passed by the Punjab Service Tribunal, Lahore in Appeal No.1098 of 1998, Appeal No.2555 of 2003 and in Appeal No.1426 of 2003 dated 6-1-2004).

(a) Punjab Education Department (Schools Education) Recruitment Rules, 1987---

----Sched., item No.5---Constitution of Pakistan (1973), Art. 212 (3)---Leave to appeal was granted by Supreme Court to consider the contention of civil servant that requirement of possessing degree at least of second Division in M.A. was meant for those candidates who had applied for initial recruitment against 33% quota, whereas candidates whose cases were covered under 67% of promotion quota, amongst SSTs for the posts of Headmaster/Headmistress were not required to at least possess second Division in M.A.

(b) Punjab Education Department (Schools Education) Recruitment Rules, 1987---

----Sched., item No.5---Punjab Service Tribunals Act (IX of 1974), S.4---Promotion---Eligibility---Civil servant possessed third division masters degree and was appointed before enforcement of Punjab Education Department (Schools Education) Recruitment Rules, 1987---Grievance of civil servant was that he was wrongly denied promotion to the post of Headmaster/Deputy District Education Officer in BPS-18---Appeal filed by civil servant was dismissed by Service Tribunal---Validity---By virtue of Note-1 in Item No.5 of Schedule to Punjab Education Department (Schools Education) Recruitment Rules, 1987, an exception was created in Rules to protect the right of promotion of SS Teachers in service of Education Department, Government of Punjab, immediately before enforcement of Rules---Such SS Teachers were of two categories, graduate and post-graduate---Right of promotion of the first category of SS Teachers was protected against the posts of Headmaster/Deputy District Education Officer in BPS-17 of promotion quota and SS Teachers of second category possessing master degree in any division, were made eligible for promotion to BPS-18 post and could also be posted as Subject Specialist---No ambiguity was found in the Punjab Education Department (Schools Education) Recruitment Rules, 1987, to suggest that the exception created in Rules, would be confined only to the extent of post of Headmaster/Deputy District Education Officer other than BPS-18 posts of promotion quota---No distinction existed in the Rules so far as the qualification of master degree for promotion to BPS-18 was concerned except that the condition of second division was relaxed for a limited class of SS Teachers, who were in service prior to the enforcement of rules in question---Purpose of such relaxation was to protect their rights of promotion and most probably reason for exclusion of strict application of condition of second division Master Degree for such category of SS Teachers was that in the old promotion policy, there was no such condition of second division M.A./M.Sc. degree for promotion to BPS-18 for Headmaster/Deputy District Education Officer---Placing a different construction on the

Rules, would amount to deprive such limited class of SS Teachers from their legitimate right of promotion---Civil servant was eligible for promotion to BPS-18 under Punjab Education Department (Schools Education) Recruitment Rules, 1987---Supreme Court set aside the judgment passed by Service Tribunal and directed the authorities to consider the civil servant for promotion for the post of Headmaster/Deputy District Education Officer BPS-18, as per his entitlement in accordance with law---Appeal was allowed.

Amir Alam Khan, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Appellant (in C.A. No.2128 of 2004).

Syed Sajjad Hussain Shah, A.A.-G. Punjab for Respondents (in C.A. No.2128 of 2004).

Syed Sajjad Hussain Shah, A.A.-G., Punjab for Petitioners (in C.P. No.117S/L of 2004 and C.P. No.1179/L of 2004).

Respondent in person (in C.P. No. 1178-L of 2004).

A.H. Masood, Advocate-on-Record for Respondent (in C.P. No1179-L of 2004).

Date of hearing: 13th October, 2005.

PLCCS 2007 SUPREME COURT 304 #

2007 P L C (C.S.) 304

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

DEPUTY COMMISSIONER, SAHIWAL and another

Versus

MUHAMMAD BOOTA ASIF

Civil Petition No.2175-L of 2001, decided on 6th October; 2005.

(On appeal from the judgment, dated 27-4-2001 passed by Punjab Service Tribunal, Lahore in Appeal No.3141 of 2000).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 3 & 4---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Respondent, who was proceeded against under provisions of Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, on four charges, was dismissed from service---Respondent filed appeal before Service Tribunal against order of his dismissal from service---Service Tribunal on examination of record, came to the conclusion that none of the charges against respondent stood proved and his appeal was allowed---Counsel for petitioner having not been able to point out any substantial question of law of public importance to warrant interference by Supreme Court, petition was dismissed.

M.A. Aziz, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioners.

Muhammad Iqbal Khan, Advocate Supreme Court for Respondent.

PLCCS 2007 SUPREME COURT 311 #

2007 P L C (C.S.) 311

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Raja Fayyaz Ahmed, JJ

GOVERNMENT OF N.-W.F.P. through Secretary, Education Department and 2 others

Versus

AMIL KHAN WAZIR, Director, Physical Education Government Postgraduate College, Abbottabad

Civil Petition No.779-P of.2003, decided on 8th November, 2005.

(On appeal from the judgment, dated 2-9-2003 passed by the learned N.-W.F.P. Service Tribunal, Peshawar in Appeal No.2088 of 2000).

North-West Frontier Province Service Tribunals Act (I of 1974)---

----S. 4---Declaration, seeking direction to authorities---Jurisdiction of Service Tribunal--Grievance of civil servant was that Government of North-West Frontier Province had not issued notification in consonance with the education policy whereas the Government of Punjab had done so---Civil servant had sought declaration from Service Tribunal that refusal on the part of the concerned department to re-designate and restructure the service cadre of Directors of Physical Education in equal grades as compared to college lecturers of general cadre similarly placed and situated was illegal, mala fide and violative of the Constitution and on such declaration appropriate order be issued to the authorities---Civil servant also sought move-over from BPS-18 to BPS-19 with all back benefits---Service Tribunal allowed the appeal, directed the authorities to issue notification in consonance with education policy and the civil servant was granted such move-over with all back benefits---Validity---Circumstances of the case fell beyond the scope of provisions of S.4 of North-West Frontier Province Service Tribunals Act, 1974, within which the Tribunal had to exercise its jurisdiction---Tribunal on the one hand accepted the appeal by granting the relief as prayed for including the grant of BPS-18 to the civil servant and move-over to BPS-19 with all back benefits without examining the case of civil servant on merits as to his entitlement---Service Tribunal transgressed the authority vested in it to be exercised squarely within the purview of S.4 of North-West Frontier Province Service Tribunals Act, 1974, by directing administrative departments of Government to formulate a policy in line with the service structure notified for Directors Physical Education on the pattern of Punjab Government or Federal Government before the specified date, failing which the pattern/policy of Punjab Government would be deemed to have been adopted in' letter and spirit---Such could not have been done in the lawful exercise of powers by Service Tribunal to substitute its own decision for that of the Government of North-West Frontier Province to be taken and exercised by it in accordance with law, after taking into account all the pros and cons of the matter involving financial and administrative implications including inter se seniority of the incumbents etc.---Service Tribunal without applying its mind to the facts of the case, scope of powers exercisable by it under the law passed a sweeping judgment in violation of law, which could not be allowed to hold the field on any ground---Supreme Court converted petition for leave to appeal into appeal and judgment passed by Service Tribunal was set aside---Appeal was allowed.

State Bank of Pakistan v. Khyber Zaman and others 2004 PLC (C.S.) 1213 ref.

M. Bilal, Senior Advocate Supreme Court for Petitioners.

Roohul Amin, Advocate Supreme Court/Advocate-on-Record for Respondent.

Date of hearing: 8th November, 2005.

PLCCS 2007 SUPREME COURT 319 #

2007 P L C (C.S.) 319

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

ABDUL SATTAR and another

Versus

DIRECTOR FOOD, PUNJAB and others

Civil Appeals Nos.316 and 317 of 2003, decided on 25th October, 2005.

(On appeal from the judgment, dated 21-4-2001 passed by Punjab Service Tribunal, Lahore in Appeal No.3094 of 2000).

(a) Constitution of Pakistan (1973)---

----Arts. 212(3), 4 & 25---Civil service---Leave to appeal was granted by Supreme Court to consider the contention of civil servants that on one hand departmental authorities had held them guilty of charges while on the other hand District Food Controller, filed claim regarding shortage of wheat with Railway Authorities---Civil servants also contended that Service Tribunal could not dismiss their appeals without taking into consideration the point of discrimination as well as action of departmental authorities, which was in violation of Arts.4 and 25 of the Constitution---Civil servants further contended that Service Tribunal could not dismiss appeals without adhering to the point that dispute related to year, 1985, whereas departmental proceedings against them were initiated in year, 1995, at a very belated stage i.e. after a span of ten years.

(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 4(1)(b)---Dismissal from service---Misconduct---Presumptive liability---Quantum of punishment---On the allegation of shortage of wheat, civil servants were awarded major penalty of dismissal from service and order for recovery of the value of wheat from them was made---Order passed by departmental authorities was maintained by Service Tribunal---Plea raised by civil servants was that they were-awarded major penalty of dismissal from service on the basis of presumptive liability---Validity---Shortage of huge quantity of wheat was not shown by civil servants in the record of Pakistan Railways Centre which was subsequently detected in the process of physical check up and consequently the sole question requiring determination would be whether it was a case of en route shortage of wheat or shortage happened at the centre after delivery of consignment---In absence of any evidence that shortage of huge quantity of wheat was the result of short delivery of consignment or wastage due to wreckage in transit, a legitimate presumption would be raised that shortage was caused at Pakistan Railways Centre, therefore, it could not be treated as a case of short delivery---No exception could be taken by Service Tribunal to the finding of departmental authority qua responsibility of civil servants---Penalty of dismissal from service awarded to civil servants was harsh and instead penalty of compulsory retirement would be sufficient to meet the ends of justice---Supreme Court converted penalty of dismissal from service awarded to civil servants into compulsory retirement with the direction that amount recoverable from them as loss of government in terms of order of departmental authority would be deposited by civil servants within three months---Supreme Court also directed that if damages claimed by department from Pakistan Railways were ultimately paid to government, the amount deposited by civil servants would be refunded to them---Appeal was partly allowed.

Shah Abdul Rashid, Senior Advocate Supreme Court with Hafiz Tariq Naseem, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants:

Syed Sajjad Hussain Shah, A.A.-G. and Zaman Bhatti, Advocate-on-Record for Respondents.

Date of hearing: 25th October, 2005.

PLCCS 2007 SUPREME COURT 334 #

2007 P L C (C.S.) 334

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION, through MD, KARACHI

Versus

NADEEM MURTAZA KHAN

Civil petition No.3823-L of 2002, decided on 1st December, 2004.

(On appeal from the judgment, dated 17-9-2002 passed by Federal Service Tribunal in appeal No.1673(L)/1998).

Constitution of Pakistan (1973)---

----Art. 212(3)---Termination of service---Principles of natural justice---Condemned unheard---Non-issuance of show-case notice---Authorities terminated services of their employee for the reasons that his appointment was on political considerations and in disregard of rules---Service Tribunal reinstated the employee as no show-cause notice was issued to him---Plea raised by the authorities was that as the appointment was on political considerations and in violation of rules, non-issuance of show-cause notice was not sufficient to set aside the order of termination---Validity---No one should be condemned unheard and if order adverse to the interest of a person was passed behind his back and without providing him opportunity of hearing such order was illegal---In absence of specific rules governing service of a person in an organization an incumbent of a post in that organization, before any action was taken in respect of his terms and conditions of service, he was entitled to the right of hearing in the light of principles of natural justice---Instead of straightaway termination of the service of the employee, proper course for the authorities was to issue him show-cause notice and to conduct inquiry to ascertain the question of his fitness to retain him in service---Order of termination of service passed in departure from the rules of service of the organization and in violation of the principles of natural justice, rendered it illegal and no exception could be taken to the judgment of Service Tribunal by virtue of which, the order of termination of service of employee was set aside and he was reinstated in service---Supreme Court declined to interfere in the judgment passed by the Service Tribunal---Leave to appeal was refused.

Muhammad Afzal v. Karachi Electricity Supply Corporation Civil Appeal No.1913 ofr1997 ref.

Javed Latif, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record for Petitioner.

Jehanzaib Bharwana, Advocate Supreme Court for Respondent.

Date of hearing: 1st December, 2004.

PLCCS 2007 SUPREME COURT 340 #

2007 P L C (C.S.) 340

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

CHIEF EXECUTIVE PROGRESSIVE PAPER LTD./CHAIRMAN, NATIONAL PRESS TRUST, ISLAMABAD

Versus

Syed ASAD ABBAS and others

Civil Petitions Nos.2681-L to 2692 of 2004, decided on 11th May, 2005.

(On appeal from the judgment, dated 26-7-2004 of the Federal Service Tribunal at Lahore, passed in Appeals No. 983/98, 1460/L to 1464/L, 1521/L, 1711/L and 2067/L to 2070/L of 1998).

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art. 212(3)---Appeal---Termination of service---Employees of National Press Trust---Direction of Service Tribunal to Trust Authority to consider case of appellants in the light of its earlier judgment and determine, whether their case was at par with the case of employees, who had been granted benefit in pursuance of such judgment---Validity---No exception could be taken to impugned order, which only fostered indiscriminate justice---Supreme Court dismissed petition, refused leave to appeal and in view of contumacious conduct of Trust Authority vis-a-vis appellants directed Trust Authority to pay Rs.5,000 to appellants.

(b) Administration of justice---

----Judgment designed to foster justice would not be open to any exception.

Muhammad Ozair Chughtai, Advocate-On-Record for petitioner.

Sh. Khizar Hayat, Advocate Supreme Court and Ch. Talib Hussain, Advocate-On-Record (absent) for Respondent No.1.

M. Rafiq Shad, Advocate Supreme Court with A.H. Masood, Advocate-On-Record for Respondents No.2.

Date of hearing: 11th May, 2005.

PLCCS 2007 SUPREME COURT 343 #

2007 P L C (C.S.) 343

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ, CHIEF SECRETARY, SINDH, KARACHI and another

Versus

HAJI MUHAMMAD PUNJAL NAREJO

Civil Petition No. 1094-K of 2002, decided on 27th April, 2005.

(On appeal from the judgment of Sindh Service Tribunal, Karachi, dated 27-9-2002 passed in Appeal No.51 of 1999).

(a) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 3(a)(b)(c) & (4)---Constitution of Pakistan (1973), Art. 212(3)---Withholding of two annual increments---Misconduct---Charge of having appointed persons during imposition of ban on fresh appointments---Civil servant pleaded lack of knowledge regarding such ban---Service Tribunal set aside such penalty---Validity---Nothing was available on record to show that letter containing instructions regarding imposition of ban on fresh appointments was circulated at all levels and that civil servant, despite having conscious knowledge thereof made appointments in violation thereof to bring matter within ambit of insubordination and misconduct---Nothing was available to show that such appointment had been made for some ulterior motive or extraneous considerations---Civil servant, who was competent to make such appointments, if had filled up such posts in good faith during period of ban, he would not be liable to be proceeded against for committing an act of misconduct---Supreme Court dismissed petition and refused leave to appeal.

(b) Civil service---

----Instructions regarding policy matters---Wilful violation of such instructions---Effect---Functionaries of government would be presumed to have knowledge of instructions regarding policy matters concerning government business---Wilful violation of such instructions would definitely bring matter-within ambit of misconduct.

Qazi Khalid Ali, Adl. A.G. Sindh and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 27th April, 2005.

PLCCS 2007 SUPREME COURT 348 #

2007 P L C (C.S.) 348

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and M. Javed Buttar, JJ

Syed HUSNAIN AAMER

Versus

TEHSIL MUNICIPAL OFFICER, NAROWAL

Civil Petition No.2384-L of 2003, decided on 21st June, 2005.

(On appeal from judgment, dated 15-7-2003 of the Punjab Service Tribunal, Lahore, passed in Appeal No.2460 of 2002).

(a) Civil service---

----Disciplinary proceedings---Mere allegation of bias against Inquiry Officer would not be sufficient to assume bias.

(b) Constitution of Pakistan (1973)---

----Art. 212(3)---Findings of Service Tribunal and departmental authorities---Validity---Supreme Court would not substitute its findings for such findings.

Attaullah Sheikh v. WAPDA and others 2001 SCMR 269 ref.

Muhammad Hanif Niazi, Advocate Supreme Court and C.M. Lateef, Advocate-on-Record for Petitioner.

Pervaiz Inayat Malik, Advocate Supreme Court for Respondent.

Date of hearing: 21st June, 2005.

PLCCS 2007 SUPREME COURT 349 #

2007 P L C (C.S.) 349

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

SHAFQAT ULLAH TUNIO

Versus

PIA (PAKISTAN INTERNATIONAL AIRLINES)

Civil Petition No.1041-K of 2002, decided on 22nd June, 2005.

(On appeal from the order, dated 28-8-2002 passed by the Federal Service Tribunal in Appeal No.486(K)/1997).

Supreme Court Rules, 1980---

----O. XIII, R.1---Service Tribunals (Procedure) Rules, 1974, R.21--Petitioner for leave to appeal---Delay of 9 days---Leave to appeal sought against judgment, dated 28-8-2002 communicated to petitioner on 7-9-2002 through registered post---Record showed that first copy of impugned judgment was issued on 7-9-2002, while its second copy was issued on 29-9-2002, which fact per se would not enlarge period of limitation---Despite timely written notice to Advocate-on-Record by office pointing out that petition was barred by 9 days, no efforts were made for 2-1/2 years to move application seeking enlargement of time explaining facts and grounds for delay---Supreme Court dismissed petition as barred by time.

Abdul Rahim Kazi, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-On-Record for Petitioner.

Amir Malik, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-On-Record (Absent) for Respondents.

PLCCS 2007 SUPREME COURT 354 #

2007 P L C (C.S.) 354

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

ABDUL SATTAR

Versus

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY and 2 others

Civil Appeal No.953 of 2004, decided on 10th November, 2005.

(On appeal from the judgment, dated 1-7-2003 passed by the Federal Service Tribunal in Appeal No.83(K)CS of 2000).

(a) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 3(b), 4(1)(b)(v), 5 & 6---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Causing loss to exchequer, charge of---Dismissal of appeal by Service Tribunal---Non-holding of regular enquiry and absence of grounds for dispensing therewith before taking such action by authority resulting in violation of principles of natural justice---Enquiry report supporting civil servant's case not considered by authority or Service Tribunal---Supreme Court granted leave to appeal to consider, inter alia, such contentions of civil servant.

(b) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4(1)(b), 5(1)(iii) & 6---Misconduct, charge of---Major penalty, imposition of---Holding or non-holding of regular inquiry by competent authority-Scope-Summary procedure would be followed in a case in which no factual controversy was involved or facts were admitted, otherwise dispensation with regular inquiry would amount to deprive civil servant from right of defence and fair opportunity of hearing---Principles.

The competent authority may, in exercise of the powers under Rule 5(iii) of' the Government Servants (Efficiency and Discipline) Rules, 1973, by dispensing with the requirement of regular inquiry, follow the summary procedure, but this power must be exercised in exceptional cases, in which either there is no factual controversy or the facts are admitted. The competent authority may, without holding a regular inquiry, pass the final order, if the charge is not based on disputed questions of facts, otherwise dispensation with regular inquiry would amount to deprive a person from right of defence and fair opportunity of hearing. The matter involving controversial questions of facts cannot be decided without detailed scrutiny and proper appreciation of oral and documentary evidence, and this is against the principle of natural justice to draw a conclusion adverse to the interest of a person on the basis of disputed facts without recording the evidence and providing him proper opportunity of cross-examining the witnesses and to make his defence.

In the normal circumstances, a case of misconduct involving controversial question of fact must not be decided in summary manner, as the dispensation of regular inquiry in such a case would amount to defeat the law and condemn a person unheard. The discretionary power of the dispensation of the regular inquiry should be exercised only in exceptional circumstances and not as a general rule in every case as the exercise of the power of dispensation with regular inquiry in a case involving factual controversy is against the spirit of law and the concept of substantial justice. The departmental authorities are certainly not required to follow the procedure of the regular Courts and observe the technicalities of law for determining the question of guilt or innocence of a person, but the fair and reasonable opportunity of hearing to enable a person to make his defence, is an inalienable right of a person facing the charge of misconduct.

Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 PLC (CS) 868 and Nawaz Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 222 rel.

----Rr. 3(b), 4(1)(b)(v), 5 & 6---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Causing loss to exchequer, charge of---Non-holding of regular enquiry before imposition of penalty by competent authority---Dismissal of appeal by Service Tribunal--Validity---Correctness of such charge could not possibly be determined without a regular inquiry with participation of civil servant and detailed scrutiny of record to ascertain that in what manner, civil servant was responsible for causing loss .to exchequer---Supreme Court accepted appeal, set aside impugned judgment and reinstated civil servant in service with back benefits subject to result of inquiry to be held afresh into such allegations.

Basharat Ali v. Director Excise and Taxation, Lahore PLJ 1987 SC 1393; Zahoor Ahmed v. WAPDA 2001 SCMR 1566; Syed Yaqoob Shah v. Xen PESCO (WAPDA) Peshawar PLD 2002 SC 667 and Abdul Qayyum v. D.G. Project Management Organization 2003 SCMR 1110 ref.

M.M. Aqil Awan, Advocate Supreme Court for Appellant.

Muhammad Munir Peracha and Ch. Muhammad Akram, Advocates-on-Record for Respondents.

Date of hearing: 10th November, 2005.

PLCCS 2007 SUPREME COURT 364 #

2007 P L C (C.S.) 364

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

Mst. SAJIDA JAVED

Versus

DIRECTOR OF SECONDARY EDUCATION, LAHORE DIVISION and others

C.P.L.A. No. 1573 of 2001, decided on 1st September, 2004.

(On appeal from order of Punjab Service Tribunal, dated 14-3-2001 passed in Appeal No.1417 of 2000).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---General Clauses Act (X of 1897), S.21---Constitution of Pakistan (1973), Art.212(3)---Cancellation of appointment letter---Principle of locus poenitentiae---Applicability---Mistake on the part of authorities---Recovery of excess salary---Civil servant was serving in Education Department as elementary school teacher in Basic Scale 9 and on the basis of 50% of available vacancies and posts, she was appointed as senior school teacher in Basic Scale-16---Civil servant joined her new duty and later on she was transferred to another district in her own pay and scale---Four years after the joining of civil servant in new post, the authorities cancelled her appointment letter and directed her to deposit excess salaries received by her during those four years---Direction of the authorities was maintained by Service Tribunal---Validity---Realizing of mistake by department after four years showed that the civil servant herself was not at fault in procuring the appointment or her posting in different schools in the district of her appointment by unfair .means---By accepting the offer validly made to her by the department on the basis of her qualifications and training in the relevant field, a valuable right had accrued to the civil servant and she could not be made to suffer for the mistake or error of the officials---Offer had been accepted and actually acted upon for almost four years---Case of the civil servant was governed by the principle of locus poenitentiae---Department could not retrace the steps already taken and lawfully acted upon the civil servant---Civil servant having actually served against the post of senior school teacher could not be compelled to accept the salary payable to elementary school teacher---Authorities could not be permitted to withhold the salary of a serving employee and to make her starve for no fault on her part--Payment made to civil servant in course of employment, due to inadvertence on the part of employer, could not be allowed to be recovered as arrears of salary wrongly paid---Civil servant could not be. legally asked to refund the differential of salary drawn by her for the post against which she had been serving under a valid order---Judgment of Service Tribunal suffered from misconception of law and misconstruction of the record and the same was set aside---Petition for leave to appeal was converted into appeal and the civil servant was found entitled to claim her salary in Basic Scale-l6---Appeal was allowed.

Syed Sharif Hussain Bokhari, Senior Advocate Supreme Court for Petitioner.

Ms. Sajida Sohail, Under Secretary, Education Department, Government of Punjab for Respondents.

Date of hearing: 1st September, 2004.

PLCCS 2007 SUPREME COURT 375 #

2007 P L C (C.S.) 375

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

DISTRICT OFFICER, AGRICULTURE (EXTENSION), SARGODHA and another

Versus

ATTA ULLAH

Civil Petition No.2628/L of 2003, decided on 14th October, 2005.

(On appeal from the judgment, dated 6-8-2003 passed by Punjab Service Tribunal, Lahore in Appeal No.482 of 2002).

(a) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

---Ss. 3, 11, 12 & 13---Removal from service---Wilful absence from duty---Period of such absence related to partly before and partly after promulgation of Punjab Removal from Service (Special Powers) Ordinance, 2000---Validity---Nobody could claim a vested right in procedure---Proceedings had rightly been taken against civil servant under Ordinance, 2000.

(b) Administration of justice---

---Nobody could claim a vested right in the procedure.

Aziz Ahmad Chughtai, Advocate Supreme Court for Petitioners.

Respondent in person.

PLCCS 2007 SUPREME COURT 382 #

2007 P L C (C.S.) 382

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and Ch. Ijaz Ahmad, JJ

SECRETARY EDUCATION, GOVERNMENT OF PUNJAB and others

Versus

Syeda ZIL-E-SUBHANI JEHAN ARA BEGUM

Civil Petition No.878-L of 2002, decided on 24th November, 2005.

(On appeal from the judgment, dated 12-1-2002 of the Punjab Service Tribunal, Lahore passed in Appeal No.2997 of 1999).

Constitution of Pakistan (1973)---

----Art. 212(3)---Advance increments-Entitlement-Service Tribunal had not examined question of entitlement of respondent to grant of advance increments in the light of rules/policies governing the subject and had allowed respondent's appeal only on the ground that competent Authority had granted said increments to three others who were similarly placed as the respondent, and since advance increments had been illegally allowed to said three subject specialist; and because on illegality committed by someone could be no precedent for a judicial forum to commit a similar illegality, counsel for parties agreed that matter be remanded to Service Tribunal to consider the matter afresh and then to determine; whether respondent was entitled to advance increments in question in terms of relevant rules/policies---Petition was converted into appeal and was allowed, as a result whereof impugned judgment was set aside and matter was remanded to Service Tribunal for fresh decision of the same.

A.H. Masood, Advocate Supreme Court with Muhammad Anis, Deputy Secretary and Muhammad Aslam, Assistant for Petitioners.

Pervez Inayat Malik, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Respondent.

PLCCS 2007 SUPREME COURT 387 #

2007 P L C (C.S.) 387

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

Qazi MUHAMMAD ISMAIL

Versus

DIRECTOR FOOD, PUNJAB, LAHORE and another

Civil Petition No.3533-L of 2002, decided on 18th. November, 2005.

(On appeal from the judgment, dated 29-8-2002 by the Punjab Service Tribunal, Lahore, in Appeal No.2614 of 2001).

Constitution of Pakistan (1973)---

----Art. 212(3)---Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, R.4(1)(b)(v)---Petition for leave to appeal---Dismissal from service---Petitioner, who was a Food-grain Supervisor, was proceeded against along with others for huge shortfall of wheat procured by them at their centre---In regular inquiry, petitioner was found guilty and on recommendations of Authorized Officer, competent Authority passed order whereby petitioner was dismissed from service along with order for recovery of value of shortfall of wheat to be made from' petitioner--Departmental appeal and then appeal before Service Tribunal, was dismissed by impugned judgment---Petitioner had filed petition for leave to appeal against judgment of Service Tribunal---Inquiry Officer and competent Authority had satisfied themselves on the basis of record that petitioner was guilty of the charge---Petitioner had himself given in writing that there was shortfall of wheat stock and that he had prepared a bogus record for fictitious dispatches of bags of wheat---Petition for leave to appeal did not involve any substantial question of law of public importance within the meaning of Art.212(3) of the Constitution, so as to call for interference by Supreme Court.

Muhammad Ozair Chughtai, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 18th November, 2005.

PLCCS 2007 SUPREME COURT 393 #

2007 P L C (C.S.) 393

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

MAUZAM HANIF

Versus

SETTLEMENT OFFICER/COLLECTOR and another

C.P. No.596-L of 2005, decided on 30th January, 2006.

(On appeal from the order, dated 30-3-2005 passed by the Punjab Service Tribunal Lahore in Appeal No.4866 of 2005).

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court-Nature--Constitutional jurisdiction is discretionary in character.

Principal King Edward Medical College, Lahore v. Ghulam Mustafa and others 1983 SCMR 196; Abdur Rashid v. Pakistan and others 1969 SCMR 141 and Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 rel.

(b) Constitution of Pakistan (1973)---

----Art. 185(3)---Constitutional jurisdiction of Supreme Court---Concurrent findings of fact by the Courts below---Effect---Supreme Court cannot interfere with the concurrent findings of the Tribunals below.

Abdul Hameed's case 1973 SCMR 530 rel.

----S. 3---Constitution of Pakistan (1973), Arts.185(3) & 199---Constitutional jurisdiction of. High Court under Art.199 of the Constitution---Scope---Dismissal from service---Appointment through misrepresentation---Domicile certificates from two districts---Petitioner was dismissed from service for the reason that he had two domicile certificates and applied for the post of Patwari, from both the districts---Service Tribunal dismissed the appeal of petitioner on the ground that petitioner had not attained the status of civil servant thus it had no jurisdiction---Dismissal order passed by the Authorities was maintained by High Court in exercise of constitutional jurisdiction---Validity---Word domicile must be construed keeping in view the purpose and object of recruitment policy---Policy makers allocated seats in each particular district with a condition that a person who had a domicile of a district was eligible to file an application for the appointment of the post in question---Domicile had a reference to the system of law by which a person was governed---Such system of law/policy prevailed all over that province---Petitioner did not challenge the vires of the policy of authorities, therefore, High Court was justified to non-suit the petitioner by virtue of his own conduct---Petitioner failed to point out that action of the Authorities was in violation of their duties, regulations and policy, as the same was a condition precedent to maintain a constitutional petition before High Court---Constitutional jurisdiction being equitable jurisdiction, could not be exercised in favour of a person who had come to Court with gross negligence on account of his misconduct---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Ali Mir's case 1984 SCMR 433; Mohsin Khan's case 1969 SCMR 306; Suleman's case 1970 SCMR 574 and Rana Muhammad Arshad's case 1998 SCMR 1462 rel.

(d) Equity---

----He who seeks equity, must come to Court with clean hands.

Sh. Naveed Shahryar, Advocate Supreme Court with Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

PLCCS 2007 SUPREME COURT 400 #

2007 P L C (C.S.) 400

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmed, JJ

SECRETARY, EDUCATION (SCHOOLS), GOVERNMENT OF THE PUNJAB, LAHORE

Versus

MUHAMMAD AKHTAR, EX HEADMASTER

Civil Petition No.2279-L of 2003, decided on 30th January, 2006.

(On appeal from the judgment, dated 2-5-2003 of the Punjab Service Tribunal, Lahore passed in Appeal No.1708 of 2001).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----Rr. 2(1), 3 & 4---Pension Rules, 1969, R.1.8---Delegation of Powers Rules, 1990, R.3(a)---Constitution of Pakistan (1973), Art.212(3)---Recovery of amount from gratuity of Headmaster---Misconduct, charge of---Service Tribunal dismissed appeal of Headmaster---Validity---Charge-sheet did not contain allegation of misappropriation or embezzlement against civil servant, but contained allegation of unauthorized withdrawal of amount spent on purchase of items without observing codal formalities---Non-observance of codal formalities was an ambiguous charge---Accusation and allegation must be of a specific nature enabling delinquent officer to furnish proper explanation---Proper sanction had been awarded for impugned purchases---Headmaster had been directed by Director Education to release payment to contractors---Letter for cancellation of sanction was received, when payment qua bills concerning different items had already been made---Purchased items remained physically available and found mention in relevant purchase register---Headmaster was competent to incur expenditure upto R.3,00,000 vide Finance Department Circular Letter No.FD(FR-II)5/82, dated 1-11-1986---Joint inquiry had been conducted against dozen of Headmasters without specifying nature of allegation and following prescribed procedure, which had resulted in serious miscarriage of justice---Department had initiated disciplinary proceedings against Headmaster after one year of his retirement---Supreme Court dismissed petition and refused leave to appeal.

Malik M. Imtiaz Mahl, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 30th January, 2006.

PLCCS 2007 SUPREME COURT 407 #

2007 P L C (C.S.) 407

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

HAMID-UL-HUSSAIN and others

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division and others

Civil Petitions Nos.1153, 1154, 1460, 1496, 1498, 1501, 1532 to 1534, 1571 to 1578 and 1742 of 2004, decided on 15th February, 2006.

(On appeal from the judgment, dated 24-4-2004 in Appeal No.165(R)CS of 2000 and others passed by the Federal Service Tribunal, Islamabad).

Civil Servants (Seniority) Rules, 1993---

----Rr. 4 & 7---Seniority---Appointment of civil servant as Section Officer by transfer on deputation in year 1989 till his appointment as Section Officer in Office Management Group (O.M.G.)---Completion of tenure of civil servant's deputation in year 1992---Appointment of civil servant on regular basis in year 1999---Claim for seniority by civil servant from date of initial deputation or completion of 3 years deputation period in year 1992---Validity---Civil servant had neither protested against induction of some deputationist in O.M.G. in year 1989 nor urged such claim during period from 1992 to 1999---Civil servant could not wriggle out of unconditional consent given by him in year 1999 for seeking induction in accordance with R.4 of Civil Servants (Seniority) Rules, 1993---Induction of civil servant had not taken place earlier and that until year 2000, he had not agitated against inaction to absorb him in O.M.G.---Such conduct/inaction of civil servant for years would amount to acquiescence---Civil servant's silence/inaction for 7/8 years had disentitled him to such claim.

Muhammad Arshad Sultan, Section Officer, Cabinet Division, Islamabad and another v. Prime Minister of Pakistan, Islamabad and others PLD 1996 SC 771; Mrs. Fakhera T. Abbasi, S.O. Finance Division, Islamabad and 2 others v. The Secretary, Establishment Division, Islamabad and 63 others 1998 SCMR 432; Mehr Sher Muhammad and others v. Federation of Pakistan 1999 SCMR 185; Muhammad Zafar Khan v. Secretary, Establishment Division, Islamabad and 155 others 1995 SCMR 1840; Muhammad Zakir Khan v. Government of Sindh and others 2004 SCMR 497 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners (in C.Ps. Nos.1153-1154 and C.P. 1577 of 2004).

All in person (in other connected petitions).

Aitzaz Ahsan, Senior Advocate Supreme Court for Respondents (in C.Ps. Nos.65, 73, 183 and 219 of 2004).

Ch. Afrasiab, Advocate Supreme Court (absent).

Respondent No.24 in person.

PLCCS 2007 SUPREME COURT 458 #

2007 P L C (C.S.) 458

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

STATE LIFE INSURANCE CORPORATION and others

Versus

MUHAMMAD JAVAID and 21 others

Civil Petitions Nos.2833-L to 2840-L, 2846-L to 2856-L of 2004 along with Civil Petitions Nos. 2981-L and 3030-L of 2004, decided on 29th December, 2004.

(On appeal from the judgment/order, dated 29-7-2004, 2-9-2004, 17-9-2004, passed by Federal Service Tribunal Lahore in Appeal No.203, 205-L, 206-L 209-L(CE), 210-L, 211-L(CE), 212-L, 213-L, 215-L, 216-L, 219-L, 224-L, 228-L, 229-L, 419-L, 473(1)(CE), 483(L)(CE), 517-L, 522-L, 523-L, 548-L(CE)/2002).

State Life Insurance Employees Services Regulations, 1973---

----Reghn. 4(ii), C(1) and (2)---Constitution of Pakistan (1973), Art.212(3)---Termination of service for non-achieving target quota of business---Reinstatement in service by Service Tribunal without back benefits---Validity---According to appointment letter, Area Manager was supposed to achieve First Year Premium in four quarters---Employee show-cause notice before expiry of 4th quarter alleging therein his failure to achieve requisite quota---Employee before Tribunal had not produced evidence indicating that when he was out of job, remained idle and had not been making earnings---Tribunal while making directions for reinstatement of employee should have left question of grant of back benefits for decision of department after recording evidence, if produced by him---Supreme Court directed forthwith reinstatement of employee in service enabling him to show performance according to appointment letter within a period of one year.

Chairman, State Life Insurance Corporation of Pakistan v. Ali Muhammad Bangash 2002 SCMR 936 and The Chairman State Life Insurance Corporation of Pakistan and others v. Muhammad Siddique in C.P. 1213 to 1215 of 2003 and others ref.

Abdul Hafeez Abbasi v. Managing Director Pakistan International Airlines Corporation 2002 SCMR 1034 fol.

Sher Zaman Khan, Advocate Supreme Court, Fazal Zaman Khan, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioners (in C.Ps. 2833-L to 2840-L/2004 and C.Ps. 2846-L to 2856-L/2004 and C.P. 2981-L and 3030-L/2004).

Respondents in person (in C.Ps. 2833 and 2834-L/2004, C.Ps.2852-L and 2854-L/2004 and C.P. 3030-L/2004).

Asmat Kamal, Advocate Supreme Court and Mehnnood-ul-Islam Advocate-on-Record for Respondent (in C.P. 2981-L/2004).

Respondents not represented (in C.Ps. 2835-L and 2840-L/2004 and C.Ps. 2846-L to 2851-L, 2853-L and C.Ps. 2855-L, 2856-L/2004).

PLCCS 2007 SUPREME COURT 473 #

2007 PLC (C.S.) 473

[Supreme Court of Pakistan]

Before Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

DIRECTOR GENERAL, MILITARY LAND AND CANTONMENT DEPARTMENT and another

Versus

Dr. Capt. NAZEER AHMED BALOCH

Civil Petition No. 1042-K of 2002, decided on 22nd July, 2004.

(On appeal from. the judgment, dated 7-9-2002 in appeal No.273(K)(CS) of 2000) passed by the Federal Service Tribunal, Karachi).

Compulsory Service in the Armed Forces Ordinance (XXXI of 1971)---

----Ss. 4, 9 & 9-A---Constitution of Pakistan (1973), Art. 212(3)---Service in Army on the basis of notice under S.4 of Compulsory Service in the Armed Forces Ordinance, 1971---Termination of service of civil servant by Army---Refusal of parent department to fix without break seniority and pay of civil servant---Service Tribunal found civil servant entitled to all such benefits under the law prevalent at relevant time---Impugned judgment did not call for interference---Supreme Court dismissed petition and refused leave to appeal.

Akhlaq Ahmed Siddiqui, Advocate-On-Record/Advocate Supreme Court for Petitioners.

Nemo for Respondent.

PLCCS 2007 SUPREME COURT 509 #

2007 P L C (C.S.) 509

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

SHAUKAT ALI KHAN

Versus

ASHFAQ HUSSAIN and others

Civil Petition No.2584-L of 2004, decided on 3rd September, 2004.

(On appeal from the judgment dated 17-6-2004 passed by Punjab Service Tribunal, Lahore in C.M. Nos.191, 293, 488 of 2004 in Appeal No.1108 of 2002).

Government Servants (Efficiency and Discipline) Rules, 1973---

----R. 3(b)---Constitution of Pakistan (1973), Art.212(3)---Misconduct---Conversion of petition for leave to appeal into appeal---Petitioner by moving miscellaneous applications, had not committed misconduct in any manner, falling within ambit of Government Servants (Efficiency and Discipline) Rules, 1973 and Service Tribunal could have kept before it relevant law before making such directions to Authority for taking action against him---Petition was converted into appeal by the Supreme Court and allowed the same and observations of Service Tribunal directing Authority to take action against petitioner of committing misconduct, were set aside.

Farooq Zaman Qureshi, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Petitioner.

Raja Abdul Rehman, A.A.-G. and Mian Ghulam Hussain, Advocate Supreme Court for Respondent.

PLCCS 2007 SUPREME COURT 522 #

2007 P L C (C.S.) 522

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

ASIF HANIF, SUB-INSPECTOR, POLICE LINES, SIALKOT

Versus

DEPUTY INSPECTOR GENERAL OF POLICE (ESTABLISHMENT) PUNJAB, LAHORE and 2 others

Civil Petition No. 2839-L of 2000, decided on 15th July, 2004.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 16-10-2000 passed in Writ Petition No.17736 of 2000).

Constitution of Pakistan (1973)---

----Art. 185(3)---Civil service---Promotion as reward---Police Hockey Team having won National Hockey Championship, Coach of the team was promoted as a Inspector of Police as a reward---Petitioner who was Assistant Manager of the team having not been so promoted, filed representation before Inspector General of Police who promoted the petitioner---Said order of promotion having not been implemented, petitioner filed constitutional petition, which was dismissed by High Court, against which petitioner had filed petition for leave to appeal in Supreme Court---Principle of locus poenitentiae, would not apply to petitioner, in circumstances of the case---Even otherwise case of petitioner was not at par with the promotee who was the coach of winning team whereas petitioner was Assistant Manager of the team and recommendation in case of promotee coach might have been on different grounds and it could not be said to be discriminatory---Petitioner having failed to point out any legal flaw in impugned judgment warranting interference by Supreme Court under Art. 185(3) of the Constitution his petition was dismissed.

Muhammad Farooq Bedar, Advocate Supreme Court and Ozair Chughtai, Advocate-On-Record for Petitioner.

Khurshid Anwar Bhinder, Addl. A.-G.., M. Saleem Shad, Advocate Supreme Court, Rao M. Yousuf Khan, Advocate-On-Record and Tahir Bashir, Inspector Legal (Police) for Respondents.

Date of hearing: 15th July, 2004.

PLCCS 2007 SUPREME COURT 534 #

2007 P L C (C.S.) 534

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

AKIF QAMAR and another

Versus

GENERAL MANAGER (ADMINISTRATION) PASSCO and others

Civil Petitions for Leave to Appeal Nos. 1851-L and 1852-L of 2001, decided on 31st August, 2004.

(On appeal from judgment of Federal Service Tribunal, dated 2-4-2001 passed in Appeals Nos. 117(L) and 118(L) of 1999).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Reinstatement in service---Entitlement to back-benefits---Petitioners, who were reinstated in service by Service Tribunal, had claimed back-benefits on ground that once Service Tribunal had found departmental order to be without lawful authority, award of back-benefits would follow automatically---Validity---Petitioners had not pleaded before Service Tribunal that during the period they were out of job, they did not do any business or were not gainfully employed anywhere else---Even before Tribunal, no specific plea was taken that petitioners being idle and out of job, could be awarded back-benefits for the period during which they remained out of job---Contention that in the event of declaration of departmental order as contrary to law or without lawful authority, back-benefits in each case would follow automatically, was repelled---Employee had to demonstrate and plead before original forum that he had not been making any earning during period when he remained out of job---In absence of any specific pleading and the fact that issue was not expressly agitated before Tribunal, it could not be presumed that petitioners remained idle, sitting at home and doing nothing during period when they remained out of job---Even otherwise case being of individual grievance and essentially a question of fact, no question of law of public importance was spelt out in the circumstances with the result that both petitions for leave to appeal were without any substance and liable to be dismissed.

Pakistan v. Mr. A.V. Issacs PLD 1970 SC 415; Qadeer Ahmad v. Punjab Labour Appellate Tribunal PLD 1990 SC 787; N.B.P. v. Punjab Labour Appellate Tribunal 1993 SCMR 105 and Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines Corporation 2002 SCMR 1034 ref.

Muhammad Zaman Qureshi, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-On-Record for Petitioners.

Muhammad Akram Khan, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate-On-Record for Respondents.

Date of hearing: 31st August, 2004.

PLCCS 2007 SUPREME COURT 560 #

2007 P L C (C.S.) 560

[Supreme Court of Pakistan]

Before Falak Sher and Ch. Ijaz Ahmed, JJ

MUHAMMAD HUSSAIN and others

Versus

E.D.O. (EDUCATION) and others

C.P.L.A. No.1348-L to 1355-L of 2006, decided on 8th March, 2007.

(On appeal from the judgment/order, dated 25-5-2006 passed by the Lahore High Court, Lahore in Appeals Nos.1736 to 1743 of 2004).

(a) Punjab Civil Servants (Efficiency and Disciplinary) Rules, 1999---

----Rr. 3(b) & 4(1)(b)(iii)---Punjab Service Tribunals Act (IX of 1974), S.4---Appeal---Misconduct, charge of---Compulsory retirement, penalty of---Civil servant not found guilty of charge during several inquiries---Reinstatement in service, but refusal of Service Tribunal to grant back benefits to civil servant---Validity---Authority had not denied plea of civil servant raised in appeal as to non-remaining gainfully employed during relevant period---Civil servant had not been found gainfully employed anywhere during relevant period---Depriving civil servant from back benefits for the period for which he remained out of job without any fault of his, would be unjust and harsh---Tribunal had decided controversy between parties without judicial application of mind---Impugned judgment was not sustainable in eyes of law---Supreme Court accepted appeal of civil' servant.

Mansoor-ul-Haq's case 2004 SCMR 1308; Sher Muhammad Shahzad's case 2006 SCMR 421; Binyamin Masih's case. 2005 SCMR 1032; Mehmood Ahmad Butt's case 2002 SCMR 1064 and Mrs. A.V. Issac's case PLD 1970 SC 415 rel.

(b) Civil service----

---Reinstatement in service---Back benefits, grant of---Principle stated.

Grant of service back benefits to an employee, who has been illegally kept away from employment is the 'rule and denial of such benefits to such a reinstated employee is an exception on the proof of such a person having remained gainfully employed during such a period.

Mansoor-ul-Haq's case 2004 SCMR 130.8; Sher Muhammad Shahzad's case 2006 SCMR 421; Binyamin Masih's case 2005 SCMR 1032; Mehmood Ahmad Butt's case 2002 SCMR 1064 and Mrs. A.V. Issac's case PLD 1970 SC 415 rel.

----Each and every case would be decided on its own peculiar circumstances and facts.

Muhammad Saleem's case 1994 SCMR 2213 rel.

(d) Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Civil Procedure Code (V of 1908), Preamble---Appeal---Tribunal would be deemed to be civil court, thus, could take benefit of principles of C.P.C. while deciding appeal---Principles.

(e) Appeal (Civil)---

----Evasive reply to averments made in appeal would not be considered denial in law.

Sardar Muhammad Arshad Khan's case 1998 PLC (C.S.) 217; Ali Muhammad's case 1994 CLC 173 and National Bank of Pakistan's case 1996 CLC 79 rel.

(f) Punjab Service Tribunals Act (IX of 1974)---

----Ss. 4 & 5(2)---Constitution of Pakistan (1973), Art.4---Appeal---Duty of Tribunal to, decide controversy between parties after judicial application of mind.

Gouranga Mohan Sikdar's case PLD 1970 SC 158; Mollah Ejahar Ali's case PLD 1970 SC 173 and Messrs Airport Support Service's case 1998 SCMR 2268 rel.

Ghulam Nabi Bhatti, Advocate Supreme Court for Petitioners (in all petitions.)

Akhtar Ali Kureshi, A.A.-G. Pb., M. Gaiz-ud-Din, Acting D.E.O., MEE, Faisalabad for Respondents (in all petitions).

Date of hearing; 8th March, 2007.

PLCCS 2007 SUPREME COURT 574 #

2007 P L C (C.S.) 574

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

MUHAMMAD SADIQ

Versus

SUPERINTENDENT OF POLICE, OKARA and others

Civil Petition No.2572-L of 2003, decided on 21st October, 2005.

(On appeal from the judgment, dated 15-7-2003 passed by Punjab Service Tribunal, Lahore in Appeal No.407 of 2002).

Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 4---Civil Services Rules (Punjab), Rr.1.1, 1.2 & 1.4---Constitution of Pakistan (1973), Art.212(3)---Reduction in rank---Applicability of Rules---Punjab Police (Efficiency and Discipline) Rules, 1975, provided that in case of minor penalty, competent Authority was required to specify the period for which said penalty would remain in force---Rule 1.1 of Civil Services Rules (Punjab) applied to Police Force, but R.1.4 of said Rules had excluded application of said Rules to the persons for whose appointment and conditions of service, special provision was made under any law for the time being in force---Petition for leave to appeal was granted to consider whether R.1.2 of Civil Services Rules (Punjab) was applicable to police force in view of R.1.4 of said Rules; that in case said rule was found not to be applicable, then whether the reduction in rank of an official was intended to operate perpetually; that in case period during which the penalty had to remain operative, was required to be prescribed, then whether on expiry of said period, civil servant would automatically regain the post from which he was reverted or he would be required to undergo the process of selection to earn his promotion.

Muhammad Riaz and others v. Province of the Punjab through Secretary, Education Department, Punjab, Lahore and others 2004 SCMR 1437 ref.

Hafiz Tariq Nasim; Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Illahi Bukhsh, Inspector (Legal) for Respondent No.1.

M. Iqbal Najam, Inspector (Legal) for Respondent No.2.

PLCCS 2007 SUPREME COURT 585 #

2007 P L C (C.S.) 585

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

PROVINCE OF PUNJAB through Secretary, Agricultural Department, Lahore and another

Versus

SHAHID PERVIZ and others

Civil Appeals Nos.1919 to 1924 of 2002, decided on 15th November, 2005.

(On appeal from the judgment of Punjab Service Tribunal, Lahore, dated 12-7-2002 passed in Appeals Nos.580, 668, 841 of 2000).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 3(b) & 4(1)(b)(v)---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service, reduction in time scale by three stages and recovery of embezzled amount---Fraudulent withdrawal of G.P. Fund advances on basis of fake vouchers by Cashier in connivance with civil servants, charge of---Service Tribunal in appeal reinstated civil servants in service, but maintained penalty of recovery of amount and reduced penalty of reduction in time scale by one stage---Plea that penalty awarded to civil servants was not proper as Cashier through his affidavit had taken responsibility of fraudulent withdrawal of such amount---Validity---Civil servants without proper verification and vigilance had put their signatures on such vouchers---Civil servants being responsible officials were required to be extra vigilant in such sensitive matters and were not supposed to put signatures on vouchers without verification of sanction for payment---Such admission of Cashier would not absolve civil servants from their responsibility of taking proper care and vigilance in checking bills, so that no mischief could be done by Cashier---Charge against civil servants was only that of negligence as they were neither party to such fraud nor beneficiary of transaction---Recovery of financial loss caused to Government by fraud of Cashier would not be proper from civil servants---Supreme Court partly accepted appeal by setting aside penalty of recovery of amount while maintaining penalty of reduction in time scale.

Syed Sajjad Hussain Shah, A.A.-G. and Muhammad Hussain Naqshbandi, Advocate Supreme Court for Appellants (in C.As. Nos.1919-1921, of 2002 and C.As. Nos.1922 -1924 of 2002).

Muhammad Hussain Naqshbandi, Advocate Supreme Court for Respondents (in C.As. Nos.1919-1921 of 2002).

Syed Sajjad Hussain Shah, A.A.-G. for Respondents (in C.As. Nos.1922-1924 of 2002).

Date of hearing: 15th November, 2005.

PLCCS 2007 SUPREME COURT 597 #

2007 P L C (C.S.) 597

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Falak Sher, JJ

FATIMA BIBI

Versus

DEPUTY DISTRICT EDUCATION OFFICER and others

Civil Petition No.2684-L of 2003, decided on 16th July, 2004.

(On appeal from the judgment/order, dated 15-8-2003 passed by the Punjab Service Tribunal, Lahore in Appeal No.806 of 2003).

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S.5---Removal from service---Principle of audi alteram partem---Applicability---Dispensing with regular inquiry---Authorities appointed fact finding inquiry and in compliance with the findings of such inquiry and without joining the civil servant in the inquiry, removed her from service---Order passed by the authorities was maintained by Service Tribunal---Validity---Without joining the civil servant in such inquiry, the report of fact finding inquiry could not be made basis for her removal---Such proceedings were contrary to principles of natural justice enshrined in the maxim audi alteram partem---Competent authority was required under S.5(1) of Removal from Service (Special Powers) Ordinance, 2000, to appoint an Inquiry Officer or inquiry committee to probe in the charge---Authority also retained power under S.5(5) of Removal from Service (Special Powers) Ordinance, 2000, to dispense with the inquiry, if it was in possession of sufficient documentary evidence against the accused or for the reasons to be recorded in writing---If allegation was proved on record, there was likelihood of imposing major penalty of removal from service upon the civil, servant, therefore, the competent authority .might have not dispensed with the inquiry which was necessary to probe into charge---Department in such like cases was required to conduct regular inquiry instead of removing the civil servant from service on the basis of fact-finding inquiry report and condemning the civil servant unheard---Supreme Court set aside the judgment passed by Service Tribunal and order of removal by the authorities and remanded the case to department to probe into the matter by conducting a regular inquiry in terms of S.5(1) of Removal from Service (Special Powers) Ordinance, 2000---Appeal was allowed.

Abdul Qayyum v. D.G. Project Management Organization, JS Headquarters, Rawalpindi and, others 2003 PLC (C.S.) 353 and Zahoor Ahmed and others v. WAPDA and others 2001 SCMR 1566 fol.

Government of N.-W.F.P. through Chief Secretary and another v. Dr. Hussain Ahmed Haroon and others 2003 SCMR 104; Chief Secretary Government of Sindh and others v. Sira,} Ahmed Bablani and another 1986 SCMR 1336; Khalid Naveed v. Member Administration and the Chairman PAEC 2000 PLC (SC) 857 and Administrator District Council Larkana and another v. Ghulab Khan and 5 others 2001 SCMR 1320 ref.

Hafiz Tariq Naseem, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Raja Abdur Rehman, A.A.-G. (Pb.) and Ms. Farzana Shahbaz, DEO Rahim Yar Khan for Respondents.

PLCCS 2007 SUPREME COURT 604 #

2007 P L C (C.S.) 604

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and M. Javed Buttar, J

Prof. MUHAMMAD WALI KHAN

Versus

HAMDARD UNIVERSITY and others

C.Ps. Nos.622 and 623-K of 2004, heard on 22nd November, 2005.

Sindh Service Tribunals Act (XV of 1973)---

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Civil Servant---Definition---Petitioner had contended that he being in employment of a private university, was a civil servant for the purpose of Sindh Service Tribunals Act, 1973 as according to its provisions an employee of an organization, which fell within the definition of Corporation, would be deemed to be a civil servant---Contention of petitioner was repelled because the university was a private university and by no stretch of imagination it could be considered a Corporation--Employees of such university, in circumstances, did not fall within the definition of civil servant---Tribunal, in circumstances, had rightly declined to grant relief to petitioner.

University of Balochistan through Registrar v. Saeed Muhammad Khan and others 1986 SCMR 1063 ref.

Sheikh F.M. Javaid, Advocate Supreme Court and Ahmadullah Faruqi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

PLCCS 2007 SUPREME COURT 608 #

2007 P L C (C.S.) 608

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

ATTA RABBANI

Versus

SECRETARY EDUCATION, GOVERNMENT OF THE PUNJAB, LAHORE and 3 others

Civil Appeal No.272 of 2005, decided on 22nd November, 2005.

(On appeal from the Punjab Service Tribunal, dated 31-12-2002 passed in Appeal No.1688 of 2002).

(a) Punjab Civil Servants Act (VIII of 1974)----

-----S. 12(i)-Constitution of Pakistan (1973), Art.212 (3)---Premature retirement---Plea raised by civil servant was that order of his premature retirement from service under S.12 (i) of Punjab Civil Servants Act, 1974, could not be passed by way of penalty for which disciplinary proceedings were required to be taken---Civil servant further raised the plea that he had been exonerated of the allegations forming subject-matter of proceedings on the basis of which he was compulsorily retired from service---Leave to appeal was granted by Supreme Court to consider the pleas raised by the civil servant.

(b) Punjab Civil Servants Act (VIII of 1974)---

----S. 12(i)---Public interest'---Connotation---Expressionpublic interest' implies a matter relating to people at large, nation or a community as a whole and if interest of general public or community is not involved in a matter, it cannot be brought within the purview of public interest'---Object of S.12(i) of Punjab Civil Servants Act, 1974, is based on subjective consideration and requirement ofpublic interest' may vary from case to case, therefore, competent authority must have reasonable nexus with `public interest'---Ordinarily Tribunal or Court is not supposed to substitute reasons for public interest and interference in the matter but such rule is subject to certain exceptions---Exception, in service matters, is that assessment of performance of a person to judge his suitability, must not be based on personal reason or the consideration not related to public interest.

----S. 12(i)---Compulsory retirement---Public interest---Proof---Civil servant was compulsorily retired from service in public interest on the allegation of embezzlement of government funds---Order passed by authorities was maintained by Service Tribunal---Validity---Allegation regarding embezzlement of government funds by civil servant stood negated by the report of inquiry committee---Opinion of competent authority that civil servant had outlived his utility and his further retention in service was not in public interest was not based on any material or sound reasons---Retirement under S.12 (i) of Punjab Civil Servants Act, 1974, was not a punishment and the order under such provision was not ordinarily interfered but the use of such power without satisfying the requirement of public interest was not proper to deprive a person from his legitimate right of service as source of earning---Authorities failed to satisfy the Supreme Court that report of inquiry committee or recommendation of District Education Officer were against the record or order passed by competent authority under S.12 (i) of Punjab Civil Servants Act, 1974, was in public interest-Judgment passed by Service Tribunal was set aside and Supreme Court directed the authorities to reinstate civil servant in service---Appeal was allowed.

Shaukat Aziz Siddiqui, Advocate Supreme Court for Appellant.

Syed Sajjad Hussain Shah, A.A.-G. for Respondents.

Date of hearing: 22nd November, 2005.

PLCCS 2007 SUPREME COURT 617 #

2007 P L C (C.S.) 617

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmed, JJ

Lt. Col. (R.) ABDUL WAJID MALIK

Versus

GOVERNMENT OF THE PUNJAB and another

Civil Petition No.1215-L of 2005, decided on 14th February, 2006.

(On appeal from the Judgment, dated 26-4-2005 of the Punjab Service Tribunal, Lahore, passed in Appeal No.1206 of 2004).

(a) Civil service---

----Post, upgradation of---Perks and privileges---Entitlement to---Principles---Civil servant has absolutely no right to claim for benefits such as pay, allowances, perks and privileges and pensionary benefits due to upgradation of post, which can only be conferred in case of promotion of the civil servant to higher grade.

(b) Punjab Service Tribunal Act (IX of 1974)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Service benefits---Officer on Special Duty (OSD)---Grievance of civil servant was that while posted as OSD, he was not paid extra benefits in shape of deputation allowance, POL charges and residential telephone facility charges---Appeal filed by civil servant was dismissed by Service Tribunal---Validity---No deputation allowance, POL charges and residential telephone facility charges were specified for the post of OSD---Such claim was made in oblivion of the fact that during his posting as OSD no official duty whatsoever was assigned to him and in absence whereof POL and residential telephone facility charges could not be paid as there was no purpose of such payment---Civil servant failed to furnish any reason on the basis of whereof such extra burden on Government exchequer could be justified, when no official duty was assigned to him---No legal right was available to civil servant to have claimed such benefits---Question of infringement of any vested right did not arise---Government employee appointed to a post or grade would be entitled to pay sanctioned for such post---Employee posted as OSD could only claim the sanctioned pay for the post and not other benefits which were not sanctioned for such post---No illegality or irregularity was pointed out by civil servant in the judgment passed by Service Tribunal---No question of law of public importance was involved in the matter---Service Tribunal had travelled in the straight furrow of detached and objective thinking and there was no deflection on account of personal bias or ill-will---Leave to appeal was refused.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Anisuddin v. Secretary to Government of Sindh, Excise and Taxation Department 1984 PLC (C.S.) 304; Muhammad Aslam v. Auditor-General of Pakistan 1995 PLC (C.S.) 1178 and Pakistan v. Mrs. A.V. Issacs PLD 1970 SC 415 distinguished.

----"Legal right"---Meaning---Legal right is that which is not only recognizable but also enforceable.

Piran Ditta v. Noor Muhammad PLD 1966 Kar. 618 rel.

(d) Civil service---

----Age of superannuation---Notification of retirement, non-issuance of---Effect---Civil servant retired on attaining the age of superannuation and issuance of notification regarding retirement had no substantial bearing on the date of retirement---Where competent authority failed to notify the fact of retirement in gazette, such failure did not render retirement without lawful authority.

Muhammad Aslam Khan v. Government of Punjab PLD 1973 Lah. 120 rel.

(e) Civil service---

----Officer on Special Duty (OSD)---Concept---Ordinarily, a Government employee should not be posted as OSD except under compelling circumstances, exigency of service and in public interest but tenure of such posting should not be more than thirty days---Being purely administrative matter, it falls within the jurisdictional domain of competent authority to exercise its right in the interest of public but it must not be lost sight of that the posting of an employee as OSD would also be an extra burden on government exchequer, as such employee receives salary without rendering any service which cannot be afforded.

Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533 rel.

(f) Civil service---

----Posting---Principles---Question of posting exclusively falls within the jurisdictional domain of competent authority but such discretion must not be exercised in an arbitrary or fanciful manner but judiciously and in accordance with settled norms of justice, equity and fairplay---Government was duty bound that while exercising" such discretion, requirement of job, nature of duties, requisite capabilities and know-how for its performance, qualifications of incumbent, seniority position, general reputation and Annual Confidential Reports must be considered and there should be no extraneous consideration and political pressure.

Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533 ref.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 14th February, 2006.

PLCCS 2007 SUPREME COURT 632 #

2007 PL C (C.S.) 632

Supreme Court of Pakistan]

Present Javed Iqbal and Ch. Ijaz Ahmad, JJ

Syed NAZAR ABBAS JAFFRI

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB and another

C.P. No.3109-L of 2004, decided on 13th February, 2006.

(On appeal from the order, dated 17-8-2004/23-8-2004 passed by the Punjab Service Tribunal, Lahore in Appeal No.1225 of 2004).

(a) Constitution of Pakistan (1973)---

----Arts. 189 & 190---Judgment of Supreme Court---Non-observance of dictum of Supreme Court by State functionaries---Effect---Judgment of Supreme Court was binding on each and every organ of the State by virtue of Arts.189 and 190 of the Constitution---Non-observance of dictum laid down by Supreme Court was violation of Art.189 of the Constitution---Legislators and Executive had refused to give due respect to the dictum of Supreme Court, which was not congenial and conducive for the existence of the country, running the State smoothly with mutual co-ordination, respect and understanding and such situation would create chaos---Each organ must work within its limits prescribed by the Constitution.

(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

---R. 41(b)(i)---Award of major penalty to civil servant-Appointment under political pressure, cancellation of-Allegation against the civil servant was that he made no efforts to fill the vacant posts duly recommended by local representatives and cancelled such appointments---Authorities imposed major penalty of reduction of two stages in time scale but Service Tribunal converted the penalty to minor penalty of withholding of one increment for two years---Validity---MNAs/MPAs were not authorized under Punjab Civil Servants Act, 1974 and rules made thereunder to pass such like orders for appointment of Chowkidar or on any other post---Competent authority acted without lawful authority as it was a case of dictatorial misuse of powers and. not independent discharge of function as depicted from one of the official letters on record---Such misuse of powers under the dictate of public representatives was invalid---Supreme Court converted the petition for leave to appeal into appeal and judgment passed by Service Tribunal as well the orders passed by Authorities were set aside---Appeal was allowed.

Zahid Akhtar's case PLD 1995 SC 530; Ghulam Mohiuddin's case PLD 1964 SC 829; Amanullah Khan's case PLD 1990 SC 1092; Abaidullah's case 1993 SCMR 1195; Gardhandas Bhangi's case AIR 1952 SC 100; Oriun Paper Mills' case AIR 1970 SC 1498 and Scam Labour Union's case (1946) 2 All ER 201 rel.

----Preamble---System of Trichotomy---Role of three organs of State---Scope---Scheme of the Constitution is based on Trichotomy---In the system of Trichotomy, the Judiciary has the right to interpret, the Legislator has right only to legislate and the Executive has to implement---Trichotomy of powers which is already delicately balanced in the Constitution, cannot be disturbed as it grants powers to each organ to decide the matters in its allotted sphere.

Zia-ur-Rehman's case PLD 1973 SC 49; Holy Book of Qur'an Sura Rehman; PLD 1958 SC 499 and Ch. Zahoor Elahi's case PLD 1975 SC 383 rel.

Petitioner in person.

Ch. M. Sadiq, Additional Advocate-General, Punjab for Respondent.

PLCCS 2007 SUPREME COURT 643 #

2007 P L C (C.S.) 643

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Mian Shakirullah Jan, J

MUHAMMAD ILYAS KHOKHAR and 24 others

Versus

FEDERATION OF PAKISTAN and others

Civil Petitions Nos.2002, 2023, 2024 to 2046 of 2004, decided on 20th March, 2006

(On appeal from the judgment, dated 8-7-2004 passed by the Federal Service Tribunal in Service Appeals Nos.269(P) CS of 2000 270(R) CS of 2000, 61(P) CS of 2000, 62(P) CS of 2000, 718(R) CS of 2000, 64(P) CS of 2000, 260(P) CS of 2000, 261(P) CS of 2000, 262(P) CS of 2000, 263(P) CS of 2000 to 268(P) CS of 2000, 60(P) CS of 2000, 714(R) CS of 2000, 717(R) CS of 2000; 63(P) CS of 2000, 719(R) CS of 2000, 720(R) CS of 2000, 736(R) CS of 2000, 737(R) CS of 2000, 738(R) CS of 2000 and 739(R) CS of 2000).

(a) Civil Servants Act (LXXI of 1973)---

----Ss. 3(ii) & 9(b)---Constitution of Pakistan (1973), Art.212(3)---Promotion---Terms and conditions of service---Departmental Circular varying the terms and conditions of service was in violation of and in conflict with Ss.3(ii) & 9(b), Civil Servants Act, 1973 as department had no lawful authority to lay down policy, unless the same was approved by the Establishment Division in accordance with the Rules of Business as well as the relevant law on the subject---Ex-post facto approval to such circular by the Establishment Division would not make the circular valid and legal which had no legal backing.

(b) Service Tribunals Act (LXX of 1973)---

----Ss. 4 & 5---Constitution of Pakistan (1973), Art.212(3)---Appeal to Service Tribunal was barred by time---Service Tribunal had the jurisdiction to condone the delay, if appeals were beyond the limitation---Supreme Court declined interference in the matter of condonation of delay by the Service Tribunal.

Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas PLD 2003 SC 724 ref.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Petitioners.

Naheeda Mehboob Elahi, Dy. A.-G., Fazal Elahi Siddiqui, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing: 20th March, 2006.

PLCCS 2007 SUPREME COURT 650 #

2007 P L C (C.S.) 650

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Saiyed Saeed Ashhad, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman

Versus

Brig. (R.) MUHAMMAD ARIF and another

Civil Petition for Leave to Appeal No.932 of 2004, decided on 5th April, 2006.

(On appeal from the judgment, dated 3-3-2004 of the Lahore High Court, Rawalpindi Bench, passed in Writ Petition No.282 of 2001).

Compulsory Service (Armed Forces) Ordinance (XIV of 1965)---

----Preamble---Constitution of Pakistan (1973), Art.185(3)---Respondent was initially appointed on probation as Engineer in WAPDA and on account of state of war between Pakistan and India, he was commissioned in Pakistan Army on 13-12-1965 by way of conscription in terms of Compulsory Service (Armed Forces) Ordinance, 1965; respondent got his normal promotions in the Army and retired from service in the rank of Brigadier with effect from 14-12-1995; he approached WAPDA for his re-employment which showed its inability to adjust him---High Court accepted appeal of the respondent for his reemployment---Validity---Held, for all practical purposes respondent could no longer be considered to be governed by Compulsory Service (Armed Forces) Ordinance, 1965 as he had been permanently inducted into Pakistan Army from where he retired as Brigadier and question of his repatriation to WAPDA would not arise at all---Judgment of High Court was not sustainable at law---Principles.

Mian Khurshid Alam Ramay, Advocate Supreme Court for Petitioner.

Zaheer A. Qadri, Advocate-on-Record for Respondents.

Respondent No.1 in person.

Date of hearing: 4th April, 2006.

PLCCS 2007 SUPREME COURT 655 #

2007 P L C (C.S.) 655

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

MUHAMMAD ANWAR---Petitioner

Versus

SUPERINTENDENT OF POLICE, FAISALABAD and others---Respondents

Civil Petition No.204-L of 2001, decided on 28th April, 2003.

(On appeal from the judgment dated 7-11-2000 passed by Punjab Service Tribunal, Lahore in A. No.3079 of 1999).

Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 6---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Forged and false certificate---Finding of fact, interference with---Civil servant at the time of joining service, produced and fake certificate showing that he had passed class 9---Disciplinary proceedings under Punjab Police (Efficiency and Discipline) Rules, 1975, were initiated and he was dismissed from service---Service Tribunal partially allowed the appeal and dismissal from service was converted into removal from service---Plea raised by the civil servant was that the qualification required for the post was middle standard and he did not take any benefit from the certificate of class 9---Validity Factum of forgery and production of fake certificate for procuring employment being questions of fact had been determined by the department after having a thorough probe, which was upheld by Service Tribunal---Such finding of fact could not be reversed in absence of any plausible justification which was lacking in the case---Civil servant could not have been appointed without producing the disputed certificate---No other certificate regarding Middle class was either produced before the Service Tribunal or Supreme Court hence question of determination of its genuineness or authenticity did not arise---Matter involved was not of benefit simpliciter but the civil servant had expressed his bent of mind and conduct which could not be appreciated---No question of law of public importance being involved in the matter and the judgment of Service Tribunal being well-based, same did not. warrant any interference---Leave to appeal was refused.

Talib H. Rizvi, Senior Advocate Supreme Court and C.M. Latif, Advocate-on-Record for petitioner.

Nemo for Respondents.

PLCCS 2007 SUPREME COURT 662 #

2007 P L C (C.S.) 662

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

CHIEF SECRETARY, GOVERNMENT OF SINDH and another

Versus

UMAR-UD-DIN

Civil Petition No.723-K of 2005, decided on 31st October, 2005.

(On appeal from the judgment dated 12-8-2005 of the Sindh Service Tribunal, Karachi, in Appeal No.88 of 2003).

West Pakistan Civil Servants Rules---

----R. 1.8---Constitution of Pakistan (1973), Art.212(3)---Departmental proceedings--Case of petitioners was hit by R.1.8 of West Pakistan Civil Servants Rules, whereby it was mandatory that Departmental proceedings would not be instituted after more than d year from date of retirement of government pensioners---No such proceedings had commenced in the present case---Petitioners had not been able to point out any irregularity or illegality in impugned judgment---Petition for leave to appeal was dismissed.

Kazi Khalid Ali, Additional Advocate-General Sindh and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 31st October, 2005.

PLCCS 2007 SUPREME COURT 678 #

2007 P L C (C.S.) 678

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

Syed FIDA HUSSAIN KAZMI

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and others

Civil Petition No.3583/L of 2002, decided on 29th November, 2005.

Railways Servants (Efficiency and Discipline) Rules, 1975---

----R. 4(1)(b)(ii) & (iv)---Constitution of Pakistan (1973), Art.212(3)---Penalty of dismissal from. service---Conversion into compulsory retirement---Petitioner did not press his petition on merits, but had sought indulgence of Supreme Court for conversion of extreme penalty of dismissal from service into compulsory retirement from service---Extreme penalty of dismissal of petitioner from service did not commensurate with the nature of his misconduct in peculiar facts and circumstances of the case---Petition for leave to appeal was converted into appeal and same was partly allowed---Impugned orders of dismissal from service, were modified to the extent that penalty of dismissal of petitioner from service was converted into compulsory retirement from service.

Muhammad Iqbal Khan, Advocate Supreme Court and Muhammad Ozair Chughtai, Advocate-on-Record for Petitioner.

Zubair Khalid., A.A.-G., Punjab and Asif Riaz Inspector Legal, Sahiwal for Respondents.

PLCCS 2007 SUPREME COURT 683 #

2007 P L C (C.S.) 683

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Khalil-ur-Rehman Ramday, JJ

MUNIR HUSSAIN SHAH

Versus

SECRETARY, PROVINCIAL ASSEMBLY, PUNJAB LAHORE and another

Civil Petition No.3566-L of 2002, decided on 19th February, 2004.

(On appeal from the judgment dated 2-9-2002 of the Punjab Service Tribunal, Lahore passed in Appeal No.325 of 2002).

Punjab Service Tribunals Act (IX of 1974)---

----S. 5---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Rule of consistency---Applicability---Civil servant in the light of third inquiry was dismissed from service and appeal filed against the order was maintained by Service Tribunal---Plea raised by civil servant was that in two other identical cases, Service Tribunal had remanded the cases to department for de novo inquiry but his appeal was dismissed by Service Tribunal---Validity---Each case had its own facts and circumstances and had to be decided on its merits either by Service Tribunal or by Supreme Court---Principle of consistency could only be invoked if there were identical facts and circumstances as well---In the present case position was different as in third inquiry, two charges were different from the charges levelled against other employees whose cases had been remanded for de novo inquiry, as such the principle of consistency was not attracted---Inquiry Officer had opined/recommended against the civil servant on the allegations against him and recommendations made by Inquiry Officer had been accepted by competent Authority---Service Tribunal in exercise of its powers under S.5 of Punjab Service Tribunals Act, 1974, had declined to interfere with the same---Civil servant failed to raise any question of law of public importance warranting interference by Supreme Court---Leave to appeal was refused.

Hafiz Tariq Nasim, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 19th February, 2004.

PLCCS 2007 SUPREME COURT 688 #

2007 P L C (C.S.) 688

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

ZAFAR IQBAL

Versus

HABIB BANK LTD. and another

Civil Petition No.3176-L of 2001, decided on 20th February, 2004.

(On appeal from the judgment/order, dated 16-7-2001 passed by Federal Service Tribunal, Lahore in Appeal No.1833-L of 1998).

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.185(3)---Premature retirement---Golden Handshake Scheme, benefits of---Petitioner a bank employee filed an application on 15-9-1997, for premature retirement which was accepted on 14-2-1998---Petitioner after his retirement wanted to have benefits of Golden Handshake Scheme, which were refused by the bank---Validity---Department did not allow the petitioner to withdraw his earlier request for premature retirement, therefore, petitioner was not entitled for any of the benefits of the Golden Handshake Scheme, which was introduced in the meantime---After submitting the application for premature retirement, the petitioner joined another Bank and had received salaries for the period of 19 months pending decision upon his application for premature retirement, therefore, he could neither claim benefits of salary etc. for such period nor benefit of Golden Handshake Scheme could be extended to him because it was announced when petitioner had already joined the other Bank---Judgment passed by Service Tribunal admitted no interference by Supreme Court---Leave to appeal was refused.

Mian Mehmood Hussain, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Petitioner.

Nemo for Respondents.

PLCCS 2007 SUPREME COURT 692 #

2007 P L C (C.S.) 692

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

SECRETARY TO GOVERNMENT OF THE PUNJAB FOOD DEPARTMENT, LAHORE and another

Versus

JAVED IQBAL and others

Civil Petitions Nos.2558-L, 2598 to 2601-L of 2003, decided on 20th February, 2004.

(On appeal from the judgment/order, dated 1-8-2003 passed by Punjab Service Tribunal, Lahore in Appeals Nos.274, 346, 347, 354, 410 of 2003).

Punjab Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 3--Service Tribunals Act (LXX of 1973), Ss.4 & 5---Constitution of Pakistan (1973), Art.212(3)---"Misconduct"---Connotation---Quantum of punishment---Principle---Reduction in penalty---Service Tribunal, jurisdiction of---Civil servants were dismissed from service on the charges of inefficiency and negligence but Service Tribunal converted the penalty from dismissal into reduction in pay scale---Validity---Definition of word "misconduct" in Punjab Removal from Service (Special Powers) Ordinance, 2000, was almost the same which had been assigned to it in Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---Charges of guilty of misconduct or corruption were always considered at higher pedestal than the charge of inefficiency---Competent authority had jurisdiction to award any of the punishments mentioned in law to the Government employee but for the purpose of safe administration of justice such punishment should be awarded which commensurate with the magnitude of the guilt otherwise the law dealing with the subject would lose its efficacy---Civil servants were not guilty of the charge of misconduct or corruption, therefore, extreme penalty of removal from service for the charge of inefficiency or negligence was on higher side---Service Tribunal had rightly reduced the quantum of punishment awarded to the civil servants by the competent authority---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

Ms. Yasmin Sehgal, Assistant A.-G. (Punjab) and Mian Ghulam Hussain, Advocate Supreme Court for Petitioners (in all cases).

Abdul Wahid Chaudhry, Advocate Supreme Court and Ch. Melldi Khan Mehtab, Advocate-on-Record for Respondents (in C.Ps. Nos. 2558-L and 2598-L to 2600-L of 2003).

Nemo for Respondents (in C.P. No.2601-L of 2003).

PLCCS 2007 SUPREME COURT 701 #

2007 P L C (C.S.) 701

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ

HABIB BANK LTD. and others

Versus

NAZIR KHAN and others

Civil Petitions Nos.1050-K and 1925 to 1935 of 2002, decided on 14th April, 2004.

(On appeal from the judgment dated 9-9-2002 of the Federal Service Tribunal, passed in Appeals Nos.1328(K) of 1998, 506(K) to 509(K) of 1997, 531(K) of 1997, 614(K) of 1997, 2369(K) of 1997, 504(K) of 1998, 505(K) of 1998, 1327(K) of 1998 and 1775(K) of 1998).

Service Tribunals Act (LXX of 1973)---

---S. 2-A---Constitution of Pakistan (1973), Art.185(3)---Bank employees---Termination of service---Review/recalling of judgment by Service Tribunal---Jurisdiction---Appeals filed by employees before Service Tribunal were earlier dismissed being barred by limitation---Later on in the light of judgment passed by Supreme Court in case titled Syed Aftab Ahmed v. K.E.S.C. reported as 1999 SCMR 197, Service Tribunal recalled its earlier orders and restored the appeals filed by the employees---Validity---Leave to appeal was granted by Supreme Court to consider; whether provisions of S.2-A of Service Tribunals Act, 1973, could be invoked so as to reopen the past and closed transaction and to permit the employees to re-agitate their grievance in respect of terms and conditions of service which had already been finally adjudicated upon by the proper forum under the existing laws, and whether Service Tribunal was empowered under the provisions of Service Tribunals Act, 1973, to recall/review its earlier final judgments.

Syed Aftab Ahmed v. K.E.S.C. 1999 SCMR 197 rel.

Shahid Anwar Bajwa, Advocate Supreme Court for Petitioners (in C.P. No.1050-K of 2002).

Raja Muhammad Akram, Advocate Supreme Court for Petitioners (in C.Ps. Nos.1925 to 1935 of 2002).

Respondent in person (in C.P. No.1925 of 2002).

PLCCS 2007 SUPREME COURT 706 #

2007 P L C (C.S.) 706

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Falak Sher and M. Javed Buttar, JJ

ZAKA ULLAH BAJWA

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and 2 others

Civil Petition for Leave to Appeal No. 2769-L of 2004, decided on 17th September, 2004.

(On appeal from judgment, dated 31-8-2004, passed by the Punjab Service Tribunal Lahore in Appeal No. 1244 of 2004).

Punjab Civil Servants Act (VIII of 1974)---

----S. 9---Constitution of Pakistan (1973), Art.212(3)---Transfer order, cancellation of---Civil servant was transferred not only due to application but there were lot of complaints against him which were thoroughly probed in and finally it was found that the civil servant was not working according to the settled principles of good governance and was creating hurdles in the ordinary functions of the department---Appeal filed by civil servant was dismissed by the authorities as well as by Service Tribunal---Validity---Request of civil servant seeking cancellation of transfer orders amounted to interference in the smooth working of government and the civil servant as a right could not claim to be posted at one place, rather the civil servant was required to serve anywhere against the post to which he was transferred---Order of authorities as well as the judgment of Service Tribunal were in consonance with the law---Judgment passed by Service Tribunal was well-reasoned and was result of proper appreciation of available material and the provisions of law, which did not call for any interference by Supreme Court---No substantial question of law of general public importance as envisaged under Art.212(3) of the Constitution was involved in the case---Leave to appeal was refused.

Petitioner in person.

Nemo for respondent.

Date of hearing: 17th September, 2004.

PLCCS 2007 SUPREME COURT 715 #

2007 PLC (C.S.) 715

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

Mst. SARWAT QAMAR

Versus

PROVINCE OF PUNJAB and others

Civil Petition No.484-L of 2003, decided on 25th November, 2005.

(On appeal from judgment dated 30-12-2002 passed by the Punjab Service Tribunal, Lahore in Appeal No.2570 of 2000).

Punjab Civil Servants Act (XIII of 1974)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Petitioner, who was appointed as P.T.C. Teacher, was removed from service on ground that her appointment order was proved to be illegal/bogus being without merit and against Government policy--Departmental Authorities as well as the Service Tribunal had recorded their concurrent findings of fact that petitioner was never selected by District Recruitment Committee, nor her name figured in the merit list and that appointment order of petitioner was a forged document---Finding of fact recorded by competent department forums and the Service Tribunal, could not be reviewed by Supreme Court---Impugned judgment of Tribunal not suffering from any defect or legal infirmity, could not be interfered with by Supreme Court.

Pervaiz Inayat Malik, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 25th November, 2005.

PLCCS 2007 SUPREME COURT 718 #

2007 P L C (C.S.) 718

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Falak Sher, JJ

MUHAMMAD YOUSAF BUTT

Versus

CENTRAL BOARD OF REVENUE and another

Civil Appeal No.2587 of 2001, decided on 9th June, 2004.

(On appeal from the judgment dated 19-9-2001 passed by the Federal Service Tribunal in Appeal No.206(K)(CS/2000).

Constitution of Pakistan (1973)---

----Art. 212---ESTACODE, Chap. No. X, Serial No. 7---Civil servant had sought premature retirement upon completion of 25 years of qualifying service for health reasons which request was eventually accepted by notification dated 30-3-2000---Civil servant, subsequently acclaimed to have withdrawn the option through letter dated 29-3-2000 addressed to the Competent Authority, alleged to have been received the same day i.e. a day prior to the acceptance notification, seeking recalling of the notification of his premature retirement, which request was turned down---Validity---Civil servant though had a right to withdraw the option before its acceptance but not thereafter since the same had attained finality being a past and closed transaction, pursuant whereto he admittedly had received all the pensionary benefits.

M.M. Aqil Awan, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Appellant.

Nahida Mehboob Elahi (Standing Counsel) for Respondents Nos. 1-2.

Date of hearing: 9th June, 2004.

PLCCS 2007 SUPREME COURT 727 #

2007 P L C (C.S.) 727

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. and Abdul Hameed Dogar, J

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad and another

Versus

GOHAR RIAZ

Civil Petition No.1915 of 2002, decided on 17th June, 2004.

(On appeal from the judgment, dated 9-9-2002 of the Federal Service Tribunal, Islamabad in Appeal No.4(R)/CS/02).

Civil Servants Act (LXXI of 1973)---

----S. 6(1)(2)---Removal From Service (Special Powers) Ordinance (XVII of 2000), S. 3 [as amended]---Constitution of Pakistan (1973), Art.212(3)---Removal from service of employee on ground of misconduct and exercising political influence to get himself employed in the department---Only a show-cause notice was issued against the employee under Removal From Service (Special Powers) Ordinance, 2000 and no full-fledged enquiry as contemplated under S. 5 of the said Ordinance was conducted---Appointee in the present case was put on, probation for two years---Only a person appointed by initial appointment, promotion or transfer could be placed on probation and appointment on ad hoc basis had been expressly excluded---Fact that the person was appointed and was placed on probation for a period of two years clearly established the regular nature of his initial appointment---Circular of seniority list issued by the department after show-cause notice to the employee further fortified his claim that he was a permanent employee as seniority list was prepared only in the cases of regular or permanent employees---Contention of employer department that initial appointment of civil servant was made in violation of rules by asserting political pressure was without any substance as department had not been able to establish on record that the employee lacked requisite qualification and was not appointed by the competent authority--Employee could not be punished for any act or omission of the department---Department could not be allowed to take benefit of its lapses in order to terminate the service of employee merely because department had itself committed irregularity by violating the procedure governing the appointment---While awarding major penalty, a proper enquiry was to be conducted in accordance with law where full opportunity of defence was to be provided to the delinquent employee---Provision of S. 5 of Removal From Service (Special Powers) Ordinance, 2000 clearly stipulated that in case of charge of misconduct as defined in S.3 of the said Ordinance, a full-fledged inquiry was to be conducted which admittedly had not been done in the present case---Petition for leave to appeal was dismissed.

Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413; Water and Power Development Authority through Chairman, WAPDA House, Lahore v. Abbas Ali Malano and another 2004 SCMR 630 and Pakistan International Airlines Corporation through Managing Director, PIAC, Head Office, Karachi Airport, Karachi v. Ms. Shaista Naheed 2004 SCMR 316 ref.

Ms. Nahida Mahboob Elahi, Advocate Supreme Court Standing Counsel and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Sh. Riazul Haq, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent.

Date of hearing: 17th June, 2004.

PLCCS 2007 SUPREME COURT 737 #

2007 P L C (C.S.) 737

[Supreme Court Pakistan]

Present: Nazim Hussain Siddiqui, C.J. and Abdul Hameed Dogar, J

Dr. MUBASHAR AHMED

Versus

P.T.C.L. through Chairman, Islamabad and another

Civil Petition No.1944 of 2002 decided on 18th June, 2004.

(On appeal from the judgment dated 12-9-2002 of the Federal Service Tribunal, Islamabad in Appeal No.788(R)/CS/2000).

(a) Civil service---

----Employee appointed/engaged on contract/part time basis has got no vested right to claim for being absorbed/appointed on regular/permanent basis.

(b) Civil service---

----Right to employ an employee vests with the employer only and employee cannot claim the vested right to be appointed.

----Appointment---Allegation of discrimination---Plea of discrimination cannot be raised in absence of the party against whom discrimination was claimed.

Shahid M. Akhtar v. Water and Power Development Authority through Chairman and another 1994 SCMR 1275 ref.

(d) Constitution of Pakistan (1973)---

----Art. 212(3)---Petition for leave to appeal---No substantial question of law of public importance being involved in the case warranting grant of leave under Art. 212(3) of the Constitution, petition being devoid of merit was dismissed.

Ch. Sadiq Muhammad Warraich, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

PLCCS 2007 SUPREME COURT 748 #

2007 P L C (C.S.) 748

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ

MANSOOR AHMAD SHEIKH

Versus

A.I.-G. DEVELOPMENT, PUNJAB, LAHORE and another

Civil Petition for Leave to Appeal No.756/L of 2000, decided on 6th July, 2004.

(On appeal from judgment, dated 4-2-2000, passed by the Punjab Service Tribunal, Lahore, in Appeal No.2192 of 1998).

Constitution of Pakistan (1973)---

----Art. 212(3)---Dismissal from service---Department had issued charge-sheet and appointed Inquiry Officer but the petitioner did not reply to the charge-sheet and even did not contest his case before the Inquiry Officer who had no other option but to proceed ex parte against him---Allegations of the Department, in the absence of any defence on record, were duly proved against the petitioner---Contentions of the petitioner were not borne out from the record---Service Tribunal with sound and cogent reasons had rightly dismissed the appeal of the petitioner---No question of law of general public importance as contemplated under Art.212(3) of the Constitution was involved in the petition, which was dismissed by the Supreme Court.

Mian Mahmood Hussain, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 6th July, 2004.

PLCCS 2007 SUPREME COURT 755 #

2007 P L C (C.S.) 755

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

CHIEF EXECUTIVE PROGRESSIVE PAPERS LIMITED/CHAIRMAN NATIONAL PRESS TRUST, ISLAMABAD

Versus

SIRAJ-UD-DIN and others

Civil Petitions Nos.2974-L of 2003, 3004-L to 3027-L of 2003 along with Civil Petitions Nos. 3100-L to 3102-L of 2003, decided on 7th July, 2004.

(On appeal from the judgment dated 4-10-2003 of the Federal Service Tribunal, Lahore passed in Appeals Nos.1339(L)/1999 to 1367(L) of 1999).

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Appeal before Service Tribunal, filing of---Limitation---Insertion of S.2-A in Service Tribunals Act, 1973---Effect---Matter of the petitioners had been decided by Labour Court and Labour Appellate Tribunal but after the insertion of S.2-A in Service Tribunals Act, 1973, the petitioners were directed by Supreme Court to invoke jurisdiction of Service Tribunal---Appeals filed by the petitioners before Service Tribunal were dismissed being barred by limitation---Validity---Provisions of S.2-A were inserted in Service Tribunals Act, 1973 on 10-6-1997 and thereafter a good number of judgments were pronounced by Supreme Court settling the controversy between the employer and the employee for invoking jurisdiction of Service Tribunal---In view of the law laid down by Supreme Court in the case titled Federation of Pakistan v. Muhammad Siddiq reported as, 1980 SCMR 443, it was incumbent upon the petitioners to have approached the Tribunal within reasonable time--Service Tribunal had rightly refused to give relief to the petitioners considering their appeals were barred by time without offering plausible explanation---Judgment of Service Tribunal was not open to any exception---Leave to appeal was refused.

Federation of Pakistan v. Muhammad Siddiq 1980 SCMR 443 rel.

Muhammad Ozair Chaughtai, Advocate Supreme Court for Petitioners (in all petitions).

Sh. Khizar Hayat, Advocate Supreme Court for Respondents (in all petitions).

Date of hearing: 7th May, 2004.

PLCCS 2007 SUPREME COURT 781 #

2007 P L C (C.S.) 781

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Falak Sher, JJ

PROVINCE OF PUNJAB through DIRECTOR FOOD, PUNJAB, LAHORE and others

Versus

FAROOQ AHMAD REHMAN

Civil Petition No. 1134-L of 2002, decided on 13th July, 2004.

(On appeal against the judgment, dated 2-2-2002 passed by the Punjab Service Tribunal, Lahore in Appeal No.1750 of 2000).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----Rr. 5, 6(4), 7-A & 8---Award of punishment by Competent Authority while disagreeing with report of Inquiry Officer endorsed by Authorised Officer exonerating civil servant from charge---Validity---Competent Authority, if not satisfied with report of Inquiry Officer and recommendation of Authorised Officer, might direct for fresh inquiry after assigning reasons therefor---Otherwise, Competent Authority would have no independent jurisdiction to award punishment.

Government of Punjab through Secretary, Livestock and Dairy Development and another v. Abdul Sattar 1990 SCMR 995 ref.

Muhammad Sharif Butt, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners (absent).

Nemo for Respondent.

PLCCS 2007 SUPREME COURT 789 #

2007 P L C (C.S.) 789

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ

Syed ZULFIQAR HUSSAIN SHAH

Versus

CHIEF ENGINEER IRRIGATION, FAISALABAD ZONE, FAISALABAD and another

Civil Petition for Leave to Appeal No.627-L of 2003, decided on 5th July, 2004.

(On appeal from judgment, dated 16-12-2002, passed by the Punjab Service Tribunal, Lahore in Appeal No.1758 of 1997).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan (1973), Art.212 (3)---Absence without leave---Loss of Government property---Recovery of such loss---Civil servant remained absent from his duty for a long time without obtaining leave as well as without handing over the charge---In absence of the civil servant, the store in his charge was checked and found deficient to the extent of Rs.4,18,703---Competent authority found the civil servant guilty of loss and imposed penalty of recovery of missing store articles---Departmental appeal as well as 'appeal' before Service Tribunal were dismissed---Validity---Inquiry officer after holding inquiry rightly found the civil servant guilty to the effect that due to his negligence, Government exchequer suffered a loss of Rs.4,18,703---Charge against the civil servant was proved because the authority unlocked the store with the help of Magistrate, staff of police station concerned and departmental officials---List of available store was prepared in presence of the officials---Civil servant had intentionally caused loss to Government and he was rightly found guilty and was ordered to pay cost of missing items---Service Tribunal had dealt with each and every aspect of the case and there was no misreading or non-reading of the material or misconstruction of law of general public---No substantial question of law of general public importance as envisaged under Art.212 (3) of the Constitution was involved in the case---Leave to appeal was refused.

Hassan Ahmad Khan Kanwar, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 5th July, 2004.

PLCCS 2007 SUPREME COURT 798 #

2007 P L C (C.S.) 798

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

JAVAID IQBAL, A.S.-I. POLICE STATION IQBAL TOWN, LAHORE

Versus

SENIOR SUPERINTENDENT OF POLICE, LAHORE and 2 others

Civil Petition for Leave to Appeal No.1721-L of 1999, decided on 15th July, 2004.

(On appeal from judgment dated 12-8-1999, passed by the Punjab Service Tribunal, Lahore in Appeal No.1652 of 1998).

Police Rules, 1934---

----R. 13.18---Constitution of Pakistan (1973), Art.212 (3)---Ad hoc promotion---Reversion to lower rank---Civil servant was promoted as Sub-Inspector on ad hoc basis---Authorities reverted him to Assistant Sub-Inspector, on the charge of involvement in criminal case---Appeal before Service Tribunal was dismissed---Plea raised by the civil servant was that once he was promoted, he could not be reverted without any show-cause notice or inquiry---Validity---Service Tribunal held that the civil servant was found involved in a criminal case which stigma was still attached with him as he had been censured in that case and the civil servant had not preferred any appeal against that order---Promotion of civil servant was made on ad hoc basis and he was neither brought on promotion E-list nor confirmed as Sub-Inspector, therefore, provision of R.13.18 of Police Rules, 1934 was not applicable in the case---Judgment of Service Tribunal was based upon law laid down by Supreme Court and there was no misreading or non-reading of material available---No substantial question of law of general public importance as envisaged under Art.212 (3) of the Constitution was involved in the case---Leave to appeal was refused.

Hafiz Tariq Nasim Advocate Supreme Court with Muhammad Aslam Ch. Advocate-on-Record for Petitioner.

Amanur Rehman, Additional Advocate-General, Rao Muhammad Yusuf Khan, Advocate-on-Record and Imtiaz Ali, Inspector (Legal) for Respondents.

Date of hearing: 15th July, 2004.

PLCCS 2007 SUPREME COURT 808 #

2007 P L C (C.S.) 808

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Falak Sher, JJ

DISTRICT EDUCATION OFFICER and others

Versus

Hafiz MUHAMMAD ISHAQ AHMAD NOORI and others

Civil Petitions Nos.1499-L to 1514-L of 2004, decided on 15h July, 2004.

(On appeal against the judgment dated 29-1-2004 passed by the Punjab Service Tribunal, Lahore in Appeals Nos.242, 287, 587, 1014, 1015, 10.16, 1326, 1327, 1397, 1476, 1492, 1501, 1502, 1545, 1938 and 21 19 of 2003).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan (1973), Art.212 (3)---Withdrawal of appointment letters---Failure to consider each case independently---Noncompliance of order passed by Supreme Court---Civil servants were appointed as school teachers but by issuing a general order, their appointments were cancelled on the ground of irregularities committed at the time of their appointments---Supreme Court directed the authorities to consider each case independently and then to decide cases of the civil servants---Authorities passed stereotyped orders in post-remand proceedings, and maintained their earlier decision---Appeals filed by the civil servants were once again accepted by Service Tribunal and the cases were again remanded to the Authorities for decision afresh---Plea raised by the Authorities was that the cases were independently considered and Service Tribunal had no authority to remand the cases for conducting regular inquiry---Validity---In post-remand orders, except change of names and numbers etc. in all substance, the orders in all the cases were identical meaning thereby that the competent authority had failed to apply its mind independently on the facts of each case---Service Tribunal was right in directing the competent authority to consider the cases of civil servants by conducting a regular inquiry---Order passed by the Tribunal being just and proper and in accordance with the earlier order of Supreme Court, no interference was called for by Supreme Court---Leave to appeal was refused.

Miss Yasmin Sehgal, A.A.-G., Muhammad Riaz Lone, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate-on-Record (absent) for Petitioners.

Irshad Ahmed Qureshi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for respondents (in C.P. No.1499-L of 2004).

Hafiz Tariq Naseem, Advocate Supreme Court for Respondents (in C.P. No.1500-L of 2004).

PLCCS 2007 SUPREME COURT 822 #

2007 P L C (C.S.) 822

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Khalil-ur-Rehman Ramday, JJ

SECRETARY, HEALTH, GOVERNMENT OF PUNJAB, LAHORE and 2 others

Versus

Dr. NISAR AHMAD

Civil Petition No.831-L of 2003, decided on 18th February, 2004.

(On appeal from the judgment, dated 29-1-2003 of the Punjab Service Tribunal, Lahore passed in Appeal No.2904 of 2002).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal before Service Tribunal, barred by limitation---New plea, raising of---Service Tribunal reinstated civil servant with a direction to hold de novo inquiry---Plea raised by Authorities was that the appeal was time-barred---Validity---Such ground was not available to Authorities as the point was not taken up by them before Service Tribunal specifically---Order of Service Tribunal was just and proper as it had directed the Department to hold de novo inquiry---Case of Authorities, warranted no interference by Supreme Court under Art.212(3) of the Constitution---Leave to appeal was refused.

Raja Abdur Rehman, A.A.-G. and Mian Ghulam Hussain, Advocate Supreme Court for Petitioners.

Mian Saleem Saigal, Advocate Supreme Court and C.M. Lateef, Advocate-on-Record for Respondent.

Date of hearing: 18th February, 2004.

PLCCS 2007 SUPREME COURT 824 #

2007 P L C (C.S.) 824

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

BASHIR AHMED SOLANGI

Versus

CHIEF SECRETARY, GOVERNMENT OF SINDH, KARACHI and 2 others

Civil Appeal No.2494 of 2001, decided on 22nd July, 2004.

(On appeal from the judgment of Sindh Service Tribunal, Karachi, dated 4-10-2001 passed in Appeal No.345 of 1998).

(a) Constitution of Pakistan (1973)---

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider the contention of civil servant that after his regular appointment by Public Service Commission he remained posted in Horticulture Line and was also promoted in Horticulture Line, and in three final seniority lists he was shown in Horticulture Line while none of his colleagues challenged the same for long eighteen years therefore the authorities were not legally competent to revert the civil servant in Plant Breeding Line of the Department.

(b) Civil Service---

----Incumbent of post changing line---Principles---Incumbent of a post of a line cannot change his line without permission of competent authority---Not permissible to place a person on the strength of a line other than his own line to his disadvantage or without his consent.

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Seniority list---Change of cadre---Principle of locus poenitentiae---Applicability---Civil servant was appointed in Plant Breeding, Agricultural Research Department of the Provincial Government from where he was posted as Assistant Cotton Botanist in Agricultural Research Institute---Civil servant had remained in the Institute for eighteen years and his seniority was being maintained in the Institute---Authorities issued a notification whereby they reverted the civil servant in Plant Breeding, Agricultural Research Department---Appeal by the civil servant before Service Tribunal was dismissed---Validity---Mere initial induction in a line would not create a bar to change the line and consequently, the reversion of civil servant to Plant Breeding line on the ground that initially he belonged to that line being detriment to the valuable right accrued in his favour in the Horticulture Line, would not be justified---If in consequence to an order passed by an authority competent to pass such an order, certain rights were created in favour of a person, such order could not be subsequently undone or withdrawn---Authority being responsible for passing of an order creating certain rights, would not be legally justified to take a turn and retrace the steps to undo the said order on the ground that it was passed in violation of rules or was a wrong order---Unless it was proved to the contrary in the rules governing a service, there could be no departure from the general rule that the change of cadre or line of promotion was neither allowed in routine nor could be claimed as of right but in exceptional circumstances and hardship cases, subject to the rule and rights of others, such change was possible---Neither the civil servant voluntarily opted for the change of line of promotion nor an express order was passed in that behalf but he, with the implied approval of the concerned authorities, continued in Horticulture Line till the date of issue of the notification of his reversion, therefore, the continuous retention of the civil servant with placement of his name in the seniority list of officers of Horticulture Line and grant of promotion and move over there would create a valuable right of enjoying the status of an officer of the strength of Horticulture line---Judgment passed by Service Tribunal and notification by the government were set aside---Appeal was allowed.

Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973 ref.

(d) Locus poenitentiae, principle of---

----Object, scope and applicability---Rule of locus poenitentiae is that the power of rescinding is available to Government or relevant authorities to retrace and undo the wrong order till a decisive step is taken---Authority which had power to make an order had taken effect and certain rights had been created in favour of an individual, such an order could not be rescinded or withdrawn to the detriment of the such individual---Such is not an unfettered power to be used at any stage in any manner for undoing an order which having already taken effect, has created vested rights---Spirit of rule of locus poenitentiae is that once an order is given effect to and in consequence thereof certain rights are created in favour of a person, such rights cannot be subsequently taken away.

Pakistan v. Muhammad Himayatullah PLD 1969 SC 407 ref.

Appellant in person.

Muhammad Sarwar Khan, Additional Advocate-General Sindh and A.A. Siddiqui, Advocate-on-Record for Respondents.

Date of hearing: 22nd July, 2004.

PLCCS 2007 SUPREME COURT 833 #

2007 P L C (C.S.) 833

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ

GOVERNMENT OF N.-W.F.P. through Secretary Education and others

Versus

RUKHSAR ALI and 24 others

Civil Petition No.594-P to 616-P, 619-P and 620-P of 2003, decided on 23rd July, 2004.

(On appeal from the judgment, dated 3-7-2003 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos. 239, 247, 374, 431, 514, 620, 703, 739, 788, 874, 875, 879, 883, 901, 902, 944, 965, 980, 1188, 1207, 1133, 882, 704 and 873 of 2002 respectively).

North-West Frontier Province Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R. 10---Constitution of Pakistan (1973), Art.185(3)---Policy decision---Retrospective effect---Initial appointments---Conditions of service---Regular or "contract basis"---Respondents appeared before Public Service Commission and were selected--- Posts advertised were on regular basis but on appointment letters it was written on contract basis'---Such appointment letters were assailed before High Court in exercise of constitutional jurisdiction---High Court allowed the petitions and declared the appointments oncontract basis' as void and ineffective---Plea raised by the authorities was that after the process of recruitment was completed, it was decided in a meeting of Provincial Cabinet to make all fresh recruitments on contract basis---Validity---All posts fell within the purview of Public Service Commission and hence as per R.10 of North-West Frontier Province Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, such initial appointments were to be made on the basis of examination or test to be conducted by the Commission---If the appointments were intended to be otherwise than on regular basis', the manner of recruitment could differently be determined by the Government under R.10(b) of North-West Frontier Province Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---Process of recruitment was completed in the year 1999/2000 but subsequently on the basis of meeting of Provincial Cabinet held on 1-7-2001, it was decided to make all fresh recruitments oncontract basis' and not on regular basis'---Such change was not permissible because any policy so made was bound to take effect prospectively and not retrospectively---High Court had rightly allowed the petitions and declared thecontract basis' as void and ineffective---Leave to appeal was refused.

Imtiaz Ali, Additional Advocate General, N.-W.F.P. for Petitioners (in all C.Ps.).

Qazi Muhammad Jamil, Senior Advocate Supreme Court with Haji Muhammad Zahir Shah, Advocate-on-Record for Respondents (in C.Ps. 595-P, 596-P, 598-P, 600-P, 609-P and 619-P of 2003).

Abdul Aziz Kundi, Advocate Supreme Court/Advocate-on-Record for Respondents (in C.P. 601-P, 603-P to 608-P, 610-P, 613-P to 616-P and 620-P of 2003).

Nemo for the Remaining Respondents.

Date of hearing: 23rd July, 2004.

PLCCS 2007 SUPREME COURT 836 #

2007 P L C (C.S.) 836

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Falak Sher, JJ

WALI-UR-REHMAN and others

Versus

STATE LIFE INSURANCE CORPORATION and others

Civil Petitions Nos.442-L, 445-L, 446-L, 467-L to 475-L and 535-L of 2004, decided on 30th July, 2004.

(On appeal against the judgment, dated 10-12-2003 passed by the Federal Service Tribunal, Lahore, in Appeals Nos.288, 290, 292, 295 to 298, 301 to 304(L)/CE of 2002 and 49 and 50(L)CE of 2003).

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Benefits of restructured pay scale---Principle of approbate and reprobate---Applicability---Extending such benefits to employees who had exercised their options of Voluntary Retirement Separation Scheme---Grievance of employees was that after their voluntary retirement, the employer-Corporation revised the pay scale with effect from the date when they were in service-Service Tribunal dismissed their appeals and declined to grant them the benefit---Validity---Employees before their retirement had given undertakings, therefore, they were estopped under the law to put up any claim of whatsoever nature against the employer-Corporation in respect of monetary gains in view of revised pay scales---Employees, after having voluntarily accepting premature retirement, could not be allowed to approbate and reprobate on the ground that after severing connection with the employer-Corporation, it had granted further monetary benefits to its employees---Such retired employees legitimately could not claim monetary benefits which Corporation was extending to its employees from time to time, depending upon changed circumstances, due to efflux of time---Retired employees were estopped by their conduct to claim the benefit of revised pay scales in view of the binding undertaking which they had furnished at the time of accepting extra benefits on their premature retirement---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.

State Bank Employees' case Civil Petition No.12 of 2001 distinguished.

Iftikhar Ullah Malik, Advocate Supreme Court and Mahmud-ul-Islam, Advocate-on-Record for Petitioners.

Ali Akbar Qureshi, Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-Record for Respondents.

Date of hearing: 30th July, 2004.

PLCCS 2007 SUPREME COURT 849 #

2007 P L C (C.S.) 849

[Supreme Court of Pakistan]

Present: Javed Iqbal and Abdul Hameed Dogar, JJ

SECRETARY, EDUCATION, N.-W.F.P., PESHAWAR and 2 others

Versus

MUSTAMIR KHAN and another

Civil Petition No. 308-P of 2004, decided on 12th August, 2004.

(On appeal from the judgment of the N.-W.F.P. Service Tribunal, Peshawar, dated 14-2-2004 passed in Appeal No. 1171 of 2003).

(a) North-West Frontier Province Service Tribunals Act (I of 1974)---

----S.4---North-West Frontier Province Civil Servants Act (XVIII of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Appeal against transfer order passed at behest of Minister of Education---Refusal of civil servant to comply with illegal orders of Minister---Service Tribunal accepted appeal of civil servant---Validity---Education District Officer at the direction of Minister had required civil servant to settle leave account of an Officer, who had remained absent from duty for about 3 years without prior approval of competent authority---Leave account could not be maintained as per whims and wishes of Minister, but relevant leave rules were to be followed---Civil servant could not be punished for his refusal to act illegally, rather his moral courage should be appreciated---Where order passed by departmental authority was mala fide, then Service Tribunal would have jurisdiction to interfere and set aside the same--Service Tribunal had set right manifest injustice---No question of law of public importance was involved---Supreme .Court dismissed petition and refused to grant leave to appeal.

Riaz Hussain v. State 1986 SCMR 1534; Secretary Finance, Government of Punjab v. Mian Ghulam Bari 1984 SCMR 642 and Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 rel.

(b) North-West Frontier Province Civil Servants (Efficiency and Discipline) Rules, 1973---

---Rr. 3 & 4-Wilful absence from duty---Effect---Such absence would amount to misconduct and on its basis, major penalty of dismissal from service could be imposed.

---S. 4---Transfer order, appeal against---Maintainability---Transfer of any civil servant could be made by competent authority in the exigency of service and pubic interest---Civil servant had no legal right to remain posted at a particular place---Transfer order, if mala fide and made for extraneous considerations to accommodate some blue-eyed chap, then matter would squarely fall within jurisdictional domain of Service Tribunal.

(d) North-West Frontier Province Service Tribunals Act (I of 1974)--

----S. 4---Mala fide order of departmental authority---Service Tribunal would have jurisdiction to interfere and set aside the same.

Riaz Hussain v. State 1986 SCMR 1534 rel.

(e) Civil Service---

----Civil servant could not be punished for his refusal to act illegality; rather his moral courage should be appreciated.

Secretary Finance, Government of Punjab v. Mian Ghulam Bari 1984 SCMR 642 and Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 rel.

Tasleem Hussain, Advocate Supreme Court for Petitioners.

Respondent in person.

Date of hearing: 12th August, 2004.

PLCCS 2007 SUPREME COURT 853 #

2007 P L C (C.S.) 853

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

MUHAMMAD RAFIQUE and 2 others

Versus

MUHAMMAD PERVAIZ and 2 others

Civil Petitions Nos.3206-L of 2003, 257-L and 225-L of 2004, decided on 5th August, 2004.

(On appeal from judgment dated 20-11-2003 of the Lahore High Court, Lahore passed in Writ Petition No.3410 of 2000).

Constitution of Pakistan (1973)---

----Arts. 185 (3) & 199 (1)(b)(ii)---Constitutional jurisdiction of High Court---Writ of quo warranto---Scope---Laches---Petitioners were appointed pursuant to the advertisement in the press, after selection by District Recruitment Committee headed by Deputy Commissioner as its Chairman---Five years after the appointments of petitioners, the respondent assailed the appointments---High Court in exercise of constitutional jurisdiction allowed the petition and declared the appointments as without lawful authority---Validity---No serious defect in the appointment of the petitioners was shown from record which was brought by the Authorities---Constitutional petition was filed after a period of five years when the petitioners had already been confirmed in their appointments after successful completion of probation period---Constitutional petition suffered from gross laches without there being any justifiable explanation---Some minor irregularities in the appointment of petitioners were not sufficient for issuance of a writ of quo warranto against them---Petition for leave to appeal was converted into appeal and judgment passed by High Court was set aside---Appeal was allowed.

Hasnat Ahmed Khan, Advocate Supreme Court for Petitioners' (in C.P. No.3206/L of 2003).

Muhammad Anwar Bhore, Advocate Supreme Court for Petitioners (in C.P. No.257/L of 2004).

Ch. Muhammad Tufail, Advocate Supreme Court for Petitioners (in C.P. No.225/L of 2004).

Mian Ghulam Hussain, Advocate Supreme Court for Respondents (in all petitions).

Raja Abdur Rehman, A.A.-G., Punjab and Muhammad Anwar, Asstt. Director, Local Government, Narowal for Respondents (in all petitions).

Date of hearing: 5th August, 2004.

PLCCS 2007 SUPREME COURT 867 #

2007 P L C (C.S.) 867

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

Mst. NAHEED NUSRAT HASHMI

Versus

SECRETARY, EDUCATION (ELEMENTARY), PUNJAB, LAHORE and others

Civil Petition No.944-L of 2003, decided on 6th August, 2004.

(On appeal from judgment dated 14-4-2003 of the Punjab Service Tribunal, Lahore, passed in Appeal No.716 of 1998).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 7---Constitution of Pakistan (1973), Art.212(3)---Findings of fact, substitution of---Discrimination by departmental Authorities---After departmental inquiry, competent Authority imposed penalty of reduction in time scale for a period of two years coupled with recovery of pecuniary loss---Service Tribunal dismissed the appeal but modified penalty by reduction in time scale into stoppage of two annual increments for four years however, recovery of pecuniary loss was maintained---Plea raised by civil servant was that she had been discriminated in departmental inquiry as other civil servants were let off---Validity--Competent Authority had issued show-cause notice to the civil servant and had also afforded her opportunity of personal hearing in the light of findings of Inquiry Officer and recommendations by Authorized Officer---Service Tribunal had already modified the penalty of her reduction in time scale by converting the same into stoppage of annual increments for four years along with recovery of pecuniary loss---Other civil servants with similar allegations were also dealt with similarly by the Authorities---Charge against the civil servant was proved at departmental level and Supreme Court declined to substitute its findings of fact for those recorded by the competent forum in absence of any exceptional circumstances---Judgment passed by Service Tribunal was not suffering from any legal infirmity so as to warrant interference by Supreme Court---No substantial question of law of public importance was involved as envisaged by Art.185(3) of the Constitution---Leave to appeal was refused.

Sh. Khizar Hayat, Advocate Supreme Court for Petitioner.

Raja Abdur Rehman, A.A.-G. Punjab, Mian Ghulam Hussain, Advocate Supreme Court and Syed Ijaz Hussain Naqvi, Under Secretary, Education Department for Respondents.

Date of hearing: 6th August, 2004.

PLCCS 2007 SUPREME COURT 870 #

2007 P L C (C.S.) 870

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

HOUSE BUILDING FINANCE CORPORATION and others

Versus

Syed MUHAMMAD ALI GOHAR ZAIDI

Civil Appeals Nos.1681 and 1682 of 2003, heard on 6th May, 2004. .

(a) House Building Finance Corporation Service Regulations, 1957---

----Regln. 11---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Civil Servants Act (LXXI of 1973), S.17---General Clauses Act (X of 1897), S.24-A---Limitation Act (IX of 1908), S.14---Specific Relief Act (I of 1877), Ss.42 & 54---Constitution of Pakistan (1973), Art.212(3)---Termination of service---Employee initially sought relief from Civil Court, but failed upto Supreme Court, which observed that remedy of employee was before Service Tribunal---Appeal filed by employee before Tribunal was resisted by Corporation as being time-barred---Tribunal accepted appeal by reinstating employee in service, but declined to grant back benefits while treating intervening period as leave of the kind due--Supreme Court granted leave to appeal to consider, questions whether in case of abatement on insertion of S.2-A in Service Tribunals Act, 1973 on 10-6-1997, period of limitation to file appeal before Tribunal would commence with effect from such date; whether Service Tribunal had erred in holding that S.14 of Limitation Act, 1908 was attracted in such a case, as it is well-settled principle of law that where relationship between employee and employer is regulated under principle of "Master and Servant", then remedy is to file suit for damages only, and that filing of suit for declaration and permanent injunction by employee and pursuing same upto Supreme Court was not only misconceived, but also vexatious; whether Service Tribunal had failed to apply provisions of S.24-A of General Clauses Act, 1897 and S.17 of Civil Servants Act, 1973 while not granting full back benefits on reinstatement of employee; and whether Service Tribunal had 'discriminated against employee by granting back benefits to other employees on reinstatement in service in other appeals from date of their reinstatement.

(b) House Building Finance Corporation Service Regulations, 1957---

----Regln. 11---Service Tribunals Act (LXX of 1973), Ss.2-A, 4 & 5---Civil Servants Act (LXXI of 1973), S.17---Specific Relief Act (I of 1877), Ss.42 & 54---Limitation Act (IX of 1908), Ss.5 & 14---Constitution of Pakistan (1973), Art.212(3)---Termination of service--Employee initially sought relief through Civil Court, but failed upto Supreme Court, which observed that his remedy was before Service Tribunal-Appeal filed by employee before Service Tribunal was resisted by Employer as being time-barred, but Service Tribunal accepted the same---Validity---Provision of S.2-A of Service Tribunals Act, 1973 being entirely distinct and unique in nature, there was utter uncertainty and confusion in legal circles as well as Courts as to its real and legal effect---Service Tribunals and Courts for long time were bonafidely of the view that such provision being substantive in nature would be applicable prospectively and not affect pending litigation---Position was authoritatively clarified after passing of judgment in case of Aftab v. K.E.S.C. 1999 SCMR 197 that all pending suits, appeals and petitions would stand abated and affected persons shall have remedy before Service Tribunals---Service Tribunal was competent to condone delay for sufficient reasons in appropriate cases-View of Service Tribunal was that employee had been agitating for enforcement of his right before different forums and no objection as to jurisdiction was even taken by Employer before any forum, where litigation went on for about one decade; and that legal position was so fluid and conflicting that neither counsel for parties nor Courts were certain as to true impact of provisions of S.2-A of Service Tribunals Act, 1973---Employee, after abrupt termination of his service, had been running from pillar to post for redress of grievance and no element' of malice or negligence on his part had been spelt out from circumstances of the case---Service Tribunal had exercised discretion in view of peculiar facts and circumstances of appeal---Supreme Court dismissed appeal.

Abdul Wahid v. Sirajuddin 1998 SCMR 2296 and Sajawal Khan v. Wali Muhammad 2002 SCMR 134 ref.

Aftab Ahmed v. Karachi Electric Supply Corporation 1999 SCMR 197 rel.

----Ss. 4 & 5---Limitation Act (IX of 1908), Ss.5 & 14---Civil Procedure Code (V of 1908), S.141---Appeal---Jurisdiction of Service Tribunal to condone delay and record evidence as a fact finding forum---Scope---Applicability of provisions of Ss.5 & 14 of Limitation Act; 1908 to proceedings in appeal before Service Tribunal being of original nature---Principles stated.

In terms of section 5 of Service Tribunals Act, the Tribunal has been vested with the authority to confirm, set aside, modify or vary an order appealed against. Undoubtedly, Tribunal is also competent to condone delay for sufficient cause in appropriate cases.

Technically, the provisions of section 14 of Limitation Act are restricted to suits, but the fact remains that the broad principles of this provision can always be extended to proceedings of civil nature before a Court or Tribunal with a view to secure the ends of justice and to suppress the mischief.

Essentially proceedings before the Tribunal though known as an appeal, are in the nature of original proceedings, as the Tribunal is a Tribunal of fact finding as well as exclusive forum deciding questions of law in relation to a departmental order where evidence of the parties can always be recorded by the Tribunal like a Court of original jurisdiction.

Assuming that the proceedings before the Tribunal are in the nature of appeal, broader principles of the provisions of section 14 (ibid) can always be invoked for fostering the ends of justice and preventing the mischief. These principles can always be called in aid for exercise of power under section 5 of Limitation Act, which permits a Court and the Tribunal to condone the delay for sufficient cause.

(d) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal---Condonation of delay by Service Tribunal---Validity---Supreme Court would always be slow and reluctant to interfere with exercise of discretion by Service Tribunal in absence of extraordinary circumstances.

(e) House Building Finance Corporation Service Regulations, 1957---

----Regln. 11---Service Tribunals Act (LXX of 1973), S.4---Civil Servants Act (LXXI of 1973), S.17---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Arts.18 & 212(3)---Termination pf service---Service Tribunal accepted appeal by reinstating employee in service, but without assigning any reason declined to grant him back benefits by treating intervening period as leave of the kind due---Validity---Mandate of S.24-A of General Clauses Act, 1897 clearly stipulated recording of reasons for every decision---Employee had remained out of job for fault on his part for 12 years till his reinstatement---Not conceivable that employee would have 12 years period of leave at his credit so to suitably compensate him for such loss---Tribunal had discriminated against employee, by granting back benefits to other employees on reinstatement in service in other appeals from date of their reinstatement---Supreme Court by allowing appeal set aside impugned order to the extent of withholding of back benefits and treatment of intervening period as leave of the kind due by allowing appeal and remanded case to Tribunal for reconsideration of matter and assigning plausible and convincing reasons therefore.

M.M. Aqil Awan, Advocate Supreme Court and Miss Wajahat Niaz, Advocate-on-Record for Appellants.

M.L. Shahani, Advocate Supreme Court for Respondents.

Date of hearing; 6th May, 2004.

PLCCS 2007 SUPREME COURT 883 #

2007 P L C (C.S.) 883

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

GHULAM SHABBIR

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and 15 others

C. P.L.A. No.1992-L of 2002, decided on 1st September, 2004.

(On appeal From the judgment of Punjab Service Tribunal, Lahore dated 5-4-2002 passed in Appeal No.1015 of 1998).

Punjab Service Tribunals Act (IX of 1974)---

---S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal before Service Tribunal--- Maintainability---Second departmental representation---Effect---Initial representation of civil servant was rejected by departmental authority vide order dated 7.7.1993 and second representation on the same subject would not give fresh life to the order---Order passed by departmental authority in the subsequent representation would be in reiteration of earlier order passed by the authority---Such subsequent order would neither revive the past and closed transaction nor create fresh cause of action for the purpose of limitation for filing appeal before Service Tribunal---Appeal was rightly dismissed by Service Tribunal as barred by time---Leave to appeal was refused.

Nazakat Ali v. WAPDA 2004 PLC (C.S.) 163, Abdul Basin Khan v. Chief Minister, Sindh 2001 PLC (C.S.) 477 and Sirajun Munira v. Pakistan 1998 SCMR 785 ref.

Syed Nisar Ali Shah, Advocate Supreme Court for Petitioner.

Raja Abdur Rehman, Assistant Advocate-General, Muhammad Muzammal Khan, Legal Inspector and Irshad Ahmad Bhatti, Legal Inspector for Respondents.

Date of hearing: 1st September, 2004.

PLCCS 2007 SUPREME COURT 886 #

2007 P L C (C.S.) 886

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ

CHAIRMAN, STATE LIFE INSURANCE CORPORATION, KARACHI and others

Versus

ABDUL RASHEED SOOMRO and others

Civil Petitions for Leave to appeal No.3347, 3348, 3357, 3358, 3359 and 3360 of 2003, heard on 5th October, 2004.

(On appeal from the judgment/order of the Federal Service Tribunal, Islamabad, dated 31-10-2003, passed in Appeals Nos.427(K)CE of 2001, 431(K)CE of 2001, 430(K)CE of 2001, 429(K)CE of 2001, 302(K)CE of 2201 and 428(K)CE of 2001).

Constitution of Pakistan (1973)---

----Art. 212(3)---Reinstatement in service---Principle of consistency---Applicability---Employees opted for voluntary retirement but before any order was passed by the authorities, employees withdrew their options---Authorities enforced the option already given by the employees and retired them---Service Tribunal, on challenging such order by employees, reinstated the employees in service---Validity---Judgment of Service Tribunal was in consonance with the law---Principle of equity, fair play and justice .required that since employees in earlier appeals were reinstated in service by Service Tribunal, the case of present employees being on the same footings should also be accepted---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

Sh. Zamir Hussain, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Petitioners (in all Petitions).

Abdul Ghafoor Mangi, Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record (absent) for Respondents (in all Petitions).

Date of hearing: 5th October, 2004.

PLCCS 2007 SUPREME COURT 940 #

2007 P L C (C.S.) 940

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

ATHAR SAEED ANWAR

Versus

DEPUTY COMMISSIONER, SAHIWAL and another

Civil Petition No.3117-L of 2001, decided on 25th October, 2005.

(On appeal from judgment, dated 13-7-2001 passed by the learned Punjab Service Tribunal, Lahore in Appeal No.2613 of 2000).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 4(1)(b)(v) & 7---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Petitioner was dismissed from service after charge-sheeting and holding inquiry against him on certain allegations---Inquiry against petitioner was. conducted by a Magistrate in conformity with Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 and petitioner was found guilty of charges after affording him reasonable opportunity of hearing and defence---Petitioner was dismissed from service by competent Authority---Service Tribunal also took pains to re-examine case of petitioner on merits, but dismissed his appeal---Findings of fact concurrently recorded by Departmental Authorities as well as the Service Tribunal, need not be substituted by Supreme Court without their being any exceptional circumstances---Impugned judgment did not suffer from any legal infirmity so as to warrant interference by Supreme Court---Petition for leave to appeal not involving any substantial question of law of public importance within the meaning of Art.212(3) of the Constitution, was dismissed.

Muhammad Iqbal Khan, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 25th October, 2005.

PLCCS 2007 SUPREME COURT 957 #

2007 P L C (C.S.) 957

[Supreme Court of Pakistan]

Presents: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

Dr. Syed SABIR ALI

Versus

GOVERNMENT OF THE PUNJAB through Secretary Health Punjab and others

Civil Appeal No.327 of 2003, decided on 25th October, 2005.

(On appeal from the judgment of the Punjab Service Tribunal, dated 4-11-2002 passed in Appeal No.2490 of 2002).

Civil Servants (Appointment, Promotion and Transfer) Rules, 1973--‑

----Rr. 7 & 8---Constitution of Pakistan (1973), Art.212(3)---Promotion---Considerations for---Appellant, having superannuation, retired from service, whereas he was due for promotion much before his retirement, but was not considered for said promotion on the ground that a restraint order was passed by Service Tribunal in another appeal---Order in said appeal was passed to protect the rights of appellant and authorities were not at all restrained to consider appellant in present appeal for promotion in his own right---Appellant was wrongly prevented to get next promotion and discharge the higher responsibilities as a result of which he was not only deprived of his legitimate right of promotion, but was also caused permanent loss of pensionary benefit of higher grade---Departmental authorities were directed by the Supreme Court to consider case of appellant for promotion as per his entitlement in accordance with law and complete the process within specified period.

Dr. Mohyuddin Qazi, Advocate Supreme Court for Appellant.

Syed Sajjad Hussain Shah, A.A:-G. for Respondents.

Date of hearing: 25th October, 2005.

PLCCS 2007 SUPREME COURT 981 #

2007 P L C (C.S.) 981

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

HOUSE BUILDING FINANCE CORPORATION and another

Versus

SyedMUHAMMAD ALI GOHAR ZAIDI and others

C.P. L. A. No.528-K of 2005, decided on 10th October, 2005, (On appeal ffom judgment of Federal Service Tribunal, Karachi dated 17-5-2005 passed in Appeal No.1 154(K) of 1999).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999--‑

----R. 4(1)(b)(v)---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service--Reinstatement---Back-benefits---Entitlement---Service Tribunal ordered reinstatement of employee, but without back-benefits---Supreme Court allowing appeal of employee against withholding of back-benefits, remanded case to Service Tribunal for re-consideration of the matter and assignment of plausible and convincing reasons on question of withholding back-benefits---In post-remand proceedings, no enquiry was conducted by Service Tribunal into question whether employee remained without any job and not doing any lawful business during intervening period, spread over a decade---Service Tribunal neither recorded any oral evidence nor was it recorded on affidavits---Judgment of Service Tribunal, in circumstances suffered from inherent legal defect and was not supported by any material on record .justifying reversal of earlier view of Service Tribunal---Service Tribunal, after remand of case, ought to have called upon parties to adduce evidence, in order to arrive at a definite conclusion whether employee remained totally idle not performing any job and not gainfully employed anywhere else during that period---Such aspect of case was not adverted to at all which had escaped attention of the Service Tribunal---Petition for leave to appeal was converted into appeal and allowed---Impugned judgment was set aside and case was remanded to the Service Tribunal for decision afresh as early as practicable.

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Respondent No. 1 in person.

Nemo for Respondents Nos.2 to 4.

Date of hearing: 10th October, 2005.

PLCCS 2007 SUPREME COURT 997 #

2007 P L C (C.S.) 997

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

HABIB BANK LIMITED

Versus

GHULAM MUSTAFA KHAIRATI

Civil Petition No.411-K of 2004, decided on 10th October, 2005.

(On appeal from the order, dated 12-3-2004 passed by Federal Service Tribunal at Karachi in Appeal No.1472(K) of 1998).

(a) Service Tribunals Act (LXX of 1973)--‑

----Ss. 2-A & 4---Employee of Nationalized Institution---Privatization of such Institution during pendency of appeal by its employee before Service Tribunal---Effect---Such subsequent development would neither deprive such employee of his status as civil servant nor oust jurisdiction of Service Tribunal to proceed with pending appeal---Principles.

Mere fact of privatization of Nationalized Institution by way of transfer/sale of its controlling share by the Federal Government to a private party would not be sufficient to oust the jurisdiction of the Service Tribunal to proceed with the case of an employee of such institution as at the time of filing of the appeal before the Tribunal he was a civil servant as provided by section 2-A of Service Tribunals Act, 1973 and a subsequent development would not deprive or strip such employee of his status as civil servant would have no adverse effect on the pending appeal.

(b) Criminal trial--‑

----Registration of F.I.R. against a person---Effect---Mere allegation of commission of an offence and registration of F.I.R. against a person would not ipso facto make him guilty, rather he would be presumed to the innocent until convicted by a competent Court---Principles.

Mere allegation of commission of an offence against a person, and registration of F.I.R. in respect of a certain offence or more than one offence against such person would not ipso facto make him guilty of commission of such offence and he would continue to enjoy the presumption of innocence until convicted by a Court of competent jurisdiction after a proper trial with opportunity to defend himself on the allegations levelled against him.

----R. 15---Termination bf service in lieu of pay for notice period---Senior Executive Vice-President---Non-performance of duties by employee due to his arrest in a criminal case---Imposition of such penalty by Authority for having lost faith and confidence in employee and for not keeping such post vacant for indefinite .period---Validity---Mere registration of criminal case against .employee would not ipso facto- make him guilty of commission of offence---Employee would continue to enjoy presumption of innocence until convicted by competent Court after trial---Authority could have posted another officer on .such post till decision of criminal case---Employee on conviction in criminal case would have lost his job---Authority during pendency of criminal case could institute departmental proceedings against employee for his alleged criminal acts found to be false subsequently---Simpliciter termination of service of employee under R.15 of Habib Bank Limited (Service) Rules, 1981 for having lost trust and confidence of competent authority was an illegal order.

(d) Civil service--‑

----Initiation of departmental proceedings against civil servant before or after his acquittal in criminal case---Principal.

Before the quashment of F.I.R. and the pendency of criminal case the authority can initiate departmental proceedings as the criminal and departmental proceedings are entirely different not being co-extensive nor inter-connected. Even after acquittal of civil servant in criminal trial, departmental proceedings could have been instituted as these are concerned with the service discipline, good conduct, integrity and efficiency of civil servant.

Syed Muhammad Iqbal Jafri v. Registrar; Lahore High Court 2004 PLC (C.S.) 809 rel.

(e) Civil service--‑

----Removal/dismissal/termination of services of an employee of nationalized Bank having no statutory rules---Validity---Such penalty could not be imposed on employee without issuing him show-cause notice calling upon his explanation and holding of an inquiry, if required, into allegations---Mere fact that existing Service Rules of Bank did not have statutory backing would not give unlimited, unfettered anal absolute power to competent authority to ignore same and deprive employee of his right of access to natural justice.

Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 PLC (C.S.) 802; The Managing Director, Sui Southern Gas Co. Ltd., v. Saleem Mustafa Shaikh and others PLD 2001 SC 176; Managing Director, Sui Southern Gas Company Limited, Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796; Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145 and Anisa Rehman Vs. P.I.A.C. 1994 SCMR 2232 rel.

(f) Service Tribunals Act (LXX of 1973)--‑

----S. 4---Appeal---Time-barred appeal---Condonation of delay---Validity---Discretion of condoning delay in filing appeal, if legally, judiciously and properly exercised would not be interfered with.

Managing Director, Sui Southern Gas Company Limited Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796 and Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145 rel.

Shahid Anwar Bajwa, Advocate Supreme Court and Ahmedullah Faruqi, Advocate-on Record for Petitioner.

Suleman Habibullah, Advocate-on-Record for Respondent.

PLCCS 2007 SUPREME COURT 1018 #

2007 P L C (C.S.) 1018

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

WAPDA through Superintending Engineer and others

Versus

MANZOOR HUSSAIN, EX-ALM

Civil Appeal No.1390 of 2000, decided on 10th February, 2005.

(On appeal from the judgment, dated 18-7-1998 passed by Federal Service Tribunal, Lahore in Appeal No.1032-L of 1997).

Pakistan WAPDA Leave Rules for WAPDA Employees, 1982---

----R. 27---Service Tribunals Act (LXX of 1973), S.4---Fundamental Rules, R.18---Constitution of Pakistan (1973), Art.212(3)---Absence without leave for 21 years---Belated issuance of show-cause notice---Effect---Employee joined service of WAPDA in 1974 and in the year 1976, he proceeded on leave and remarried absent for 21 years---Employee was issued show-cause notice on 30-9-1997 and his services were terminated in the same year---Federal Service Tribunal on appeal reinstated employee in service after treating his prolonged absence without leave as extraordinary leave without pay on ground that WAPDA was responsible for lapses for not taking notice of such absence at the earliest---Validity---Action of WAPDA against employee was though belated but it was the employee who had to justify his absence of not one day but of more than two decades---Absence of employee was so glaring and unjustifiable that there was no need even to hold an enquiry---Belated action taken by WAPDA was perfectly justified---Employee being in service of an authority, he could not be allowed to rejoin his service at his own pleasure and convenience---Rule 27 of Pakistan WAPDA Leave Rules for WAPDA Employees, 1982, clearly provided that even by combination of different types of leaves, an employee was to cease to be an employee, if he remained absent beyond a prescribed period---Even under Rule 18 of Fundamental Rules, a civil servant who remained continuously absent from duty with or without leave for a period of more than five years ceased to be in government service---Issuance of show-cause notice could at the most be dubbed as a much belated action but this lapse did not in any case regularize an absence of 21 years without leave---Appeal filed by WAPDA was accepted.

Ch. Ghulam Hussain Ghulshan, Advocate Supreme Court for Appellants.

Mian Mehmood Hussain, Advocate Supreme Court for Respondent.

Date of hearing: 10th February, 2005.

PLCCS 2007 SUPREME COURT 1033 #

2007 P L C (C.S.) 1033

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Raja Fayyaz Ahmad, JJ

Miss SAIMA GARDEZI

Versus

PRESIDENT, FIRST WOMAN BANK LIMITED and 2 others

Civil Petition No.1927-L of 2005, decided on 3rd February, 2006.

(On appeal from the judgment, dated 30-7-2005 of the Federal Service Tribunal, Lahore passed in Appeal No.96/L(C.E.) of 2004).

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Termination of service---Probationer---Failure to assign any reason for termination of service---Petitioner was employee of bank initially on contract basis, afterwards her service was regularized and she was on probation, when her service was terminated---Departmental appeal as well. as appeal before Service Tribunal were dismissed---Plea raised by petitioner was that her service could not be terminated without assigning any reason---Validity---Services of a probationer could be terminated or dispensed with at any time during the period of probation without assigning any reason in view of the settled law on the subject---No substantial question of law of public importance had been raised within the meaning of Art..212 (3) of the Constitution---Leave to appeal was refused.

Malik Allah Yar, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Shahid Anwar Bajwa, Advocate Supreme Court and Mehmoodul Islam, Advocate-on-Record for Respondents.

Date of hearing: 3rd February, 2006.

PLCCS 2007 SUPREME COURT 1279 #

2007 P L C (C.S.) 1279

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

GHULAM ABBAS

Versus

SUPERINTENDENT OF POLICE (CRIME), LAHORE and another

Civil Petition No.2033-L of'2005, decided on 26th October, 2005.

(On appeal from the judgment dated 21-6-2005 passed by Punjab Service Tribunal, Lahore in Appeal No.828 of 2004).

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----5. 3---Constitution of Pakistan (1973), Art.212(3)--- Dismissal from service on ground of misconduct---Petitioner, Ex-Sub-Inspector Police, who was convicted and sentenced in a case under section 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was proceeded against under Punjab Removal from Service (Special Powers) Ordinance, 2000, was dismissed from service---Federal Shariat Court though had acquitted the petitioner in appeal from the offence under S.10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but had maintained conviction of petitioner under Ss.337-A(ii) & 342, P.P.C.---Conviction and sentence of petitioner under Ss.337-A(ii) & 342, P.P.C. having stood upheld by Supreme Court, subsequent compromise would not have the effect of wiping away the act of misconduct of the petitioner, which stood established---Case being not fit for interference, petition for leave to appeal was dismissed.

Abdul Rashid Qureshi, Advocate Supreme Court for Petitioner. Nemo for Respondents.

PLCCS 2007 SUPREME COURT 1284 #

2007 P L C (C.S.) 1284

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

SAFDAR ALI

Versus

D.I.-G. TRAFFIC, LAHORE and others

Civil Petition No.1600-L of 2001, decided on 24th October, 2005.

(On appeal from judgment, dated 15-3-2001 of the Punjab Service Tribunal, Lahore, in Appeal No.1550 of 1999).

Constitution of Pakistan (1973)---

----Art. 212(3)---Dismissal from service---Petitioner while posted as A.S.I. Traffic, was proceeded against for accepting illegal gratification for releasing a wagon---Bogus printed challan book was also recovered from possession of petitioner by the Superintendent of Police--- - Departmental Authorities as well as the Service Tribunal; had recorded concurrent findings of fact that petitioner was guilty of the charges against him---Petition for leave to appeal did not involve any substantial question of law of public importance within the meaning of Art.212(3) of the Constitution, impugned judgment, not suffering from any legal infirmity, petition was dismissed.

Abdur Rehman Madni, Advocate Supreme Court and Faizur Rehman, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 24th October, 2005.

PLCCS 2007 SUPREME COURT 1288 #

2007 P L C (C.S.) 1288

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ

FEDERATION OF PAKISTAN through D.G. Military Lands and Cantonment Rawalpindi and others

Versus

Syed IBRAHIM SHAH and others

Civil Petitions Nos.196-K and 197-K of 2005, decided oft 26th September, 2005.

(On appeal from judgment dated 11-12-2004 passed by Federal Service Tribunal, at Karachi in Appeals Nos.122 and 410(K)(C.S.) of 2003).

Removal from Service (Special Powers) Ordinance, (XVII of 2000)---

S. Ll---Constitution of Pakistan (1973), Art. 212(3)---Overriding effect of Removal from Service (Special Powers) Ordinance, 2000---Petitions had been directed against judgment passed by- Service Tribunal whereby appeals of the respondents against their dismissal from service were allowed on the short ground that after promulgation of Removal from Service (Special Powers) Ordinance, 2000, the proceedings against them under Pakistan Cantonment Service Rules, 1954 were not legal---Contention of petitioners was that notwithstanding the promulgation of Removal from Service (Special Powers) Ordinance, 2000, operation of Pakistan Cantonment Service Rules, 1954, would continue and action taken against the respondents under said rules, would be quite in accordance with law---Validity---Provisions under section 11 of Removal from Service (Special Powers) Ordinance, 2000 having overriding effect, would make the proceedings under the Pakistan Cantonment Service Rules, 1954 ineffective---Petitions were dismissed, however, as petitioners had bona fide impression that the order passed under the Rules in question was legal, instead of applying for holding a de novo inquiry in terms of judgment of Service Tribunal, preferred to file those petitions before Supreme Court, petitioners, held, would be still entitled to avail the time given by the Tribunal for de novo inquiry.

Rafiq Ahmed, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioners.

Respondent in Person.

PLCCS 2007 SUPREME COURT 1290 #

2007 P L C (C.S.) 1290

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

FAZAL KARIM

Versus

PUNJAB SERVICE TRIBUNAL through Chairman and others .

Civil Petition No.1631-L of 2001, decided on 24th October, 2005.

(On appeal from the judgment, dated 24-3-2001 passed by Punjab Service Tribunal, Lahore in Appeal No.778 of 1999).

Constitution of Pakistan (1973)---

----Art. 212(3)---Advance increment---Entitlement---Petitioner, a selection grade stenographer (BS-16), who, by virtue of move-over in BS-17, was designated as Private Secretary (BS-17), filed representation for grant of two advance increments on acquiring LL.B., Degree; a qualification higher, than one prescribed under the rules for the post of senior scale stenographer---Validity---Vide Finance Department Circular No.FD.PR12-3/91, dated 14-4-1997, officials in BS-16 were also declared entitled to advance increments for acquiring higher qualification, provided that same was in the relevant field---Law degree acquired by petitioner, could not be said to be a higher qualification "in his own field" in respect of a senior scale stenographer---Petition was dismissed.

Zarif Khan v. Government of N.-W.F.P. 1996 MLD 833 ref. Petitioner in Person.

M.A. Aziz, Advocate Supreme Court and Ms. Rukhsana Nadeem, Deputy Secretary (Finance) for Respondents.

PLCCS 2007 SUPREME COURT 1332 #

2007 P L C (C.S.) 1332

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudh.ry, C.J., Javed Iqbal, Abdul Hameed Dogar, Faqir Muhammad Khokhar, Mian Shakirullah Jan, M. Javed Buttar, Tassaduq Hussain Jillani, Syed Jamshed Ali, Hamid Ali Mirza, JJ

MUHAMMAD IDREES

Versus

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN and others

Civil Appeals Nos. 1394 of 1999 etc., heard on 13th September, 2007

(On appeal from the judgment dated 2.3.1999 passed by the Federal Service Tribunal, Islamabad in S.A. No.809-R of 1998).

(a) Precedent---

----Even if declaration of law is prospective, it will apply to the cases in which the law is declared.

(b) Service Tribunals Act (LXX of 1973)---

----S. 2-A---Constitution of Pakistan (1973), Arts.240, 260 & 212---Abatement of proceedings before Service Tribunal---Scope and extent--Law laid down in the judgment of Supreme Court in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602 reiterated/recapitulated---Said judgment was rendered by the Supreme Court while cases filed by the employees and the employers were before it either at the leave stage or appeal stage---Transactions past and closed were saved--- Cases pending before the Supreme Court could not be said to be past and closed transactions---Judgment in Muhammad Mubeen-us-Salam applied only to the proceedings in relation to the cases which were pending before the Supreme Court' (either at appeal stage or at leave granting stage) and therefore, the cases in which judgments of the Service Tribunal were never assailed before the Supreme Court had attained finality---Section 2-A, Service Tribunals Act, 1973 was ultra vires of Arts.240 & 260 of the Constitution and unless services of an employee were governed by statutory rules he had no right to invoke jurisdiction of the Service Tribunal---Contention that judgments rendered by Service Tribunal (implemented or not) should be maintained would be totally destructive of the law declared in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602---If abatement was applied only to the petitions or appeals of the employers pending before Supreme Court, it would amount to validating the judgments/orders . of the Service Tribunal without even examining them---Proceedings initiated before the Service Tribunal from their very inception stood abated---Direction for abatement by Supreme Court in Muhammad Mubeen-us-Salam's case was not under S.6, Service Tribunals Act, 1973; basis of the direction was that in cases where services of an employee were not governed by statutory rules he could not invoke S.2-A of the Service Tribunals Act, 1973 and as a corollary to and as a matter of course in such cases the Service Tribunal had no jurisdiction and after such finding, it could not possibly be said that only the matters pending before the Supreme Court, would abate leaving the judgments of Service Tribunal intact--In fact, nullifying the proceedings taken before the Service Tribunal was not only the plain intention of the Supreme Court but was also spelt out by the directions given in Muhammad Mubeen-us-Salam's case---View in the Supreme Court judgment in the case of State Life Insurance Corporation of Pakistan 2007 SCMR 1400 was inconsistent with the concept of abatement as contemplated by the judgment in Muhammad Mubeen-us-Salam's case.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; C.P. No.552 of 2007 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

State Life Insurance Corporation of Pakistan through Chairman v. Raz Muhammad Shanwari and others 2007 SCMR 1400, held, inconsistent with Muhammad Mubeen-us-Salam's case PLD 2006 SC 602.

---Definition---Concept of abatement is not capable of exact definition.

(d) Service Tribunals -Act (LXX of 1973)---

----S. 2-A----Constitution of Pakistan (1973), Arts.240, 260 & 212---Abatement of proceedings---Held, cases of employees whose services were not governed by statutory rules stood abated with the result that proceedings and judgments rendered by Service Tribunal also stood nullified---Affected/aggrieved parties were allowed a further period of 90 days to have recourse to the available remedies---Judgments of the Service Tribunal rendered on the basis of S.2-A of the Service Tribunals Act, 1973, which were never challenged before the Supreme Court, had attained finality and shall be implemented by the concerned organizations without dragging the employees into further litigation---Cases -in which the services of the employees were governed by statutory rules were not hit by the Supreme Court judgment in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602---Supreme court directed that cases of employees whose services were not governed by statutory rules stood abated but other cases would require further hearing ion the question whether services of employees in those cases were or were not governed by the statutory rules and same shall be fixed for disposal before appropriate Bench.

Muhammad Mubeen-us-Salam and others. v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 ref.

Abdul Hafeez Pirzada, Khalid Anwar, Raja Muhammad Akram, Waseem Sajjad, Syed Iftikhar Hussain Gillani, Shahid Hamid, Abdul Karim Khan Kundi and Muhammad Akram Sh., Senior Advocates Supreme Court for Appellants.

Syed Asif Shah, Sh. Riaz-ul-Haq, Abdur Rehman Siddiqui, Afzal Siddiqui, Mian Mehmood Hussain, Ch. Khalid Farooq, Mehmood A. Sh., Mirza Hafeez-ur-Rehman, Sh. Altaaf Ilahi, Zulfiqar Khalid Maluka, Dr. Babar Awan, Advocates Supreme Court for Appellants.

Mehr Khan Malik and Arshad Ali Chaudhry, Advocate-on-Record for Appellants..

Abrar Ahmad Khan Alamgir, Muhammad Javed Iqbal, Muhammad Naeem Iqbal, Muhammad Aslam Khan, Sh. Manzoor Hussain Shah, Abdul Majeed Siddiqui, Dildar Muhammad Awan, Shaukat Masood Zafar, Ghulam Samdani Hashmi, Rana Muhammad Khalil, Ghulam Abbas Memon, Munawar Ahmad, Syed-ur-Rehman, Abdul Qayum Chaudhry, Muhammad Sabir, Muhammad Aslam Nadeem, Muhammad Ilyas, Abdul Sattar, Muhammad Akram Aftab, Muhammad Naseem Asif, Muhammad Rafiq, Muhammad Nawaz Jappa, Gulzar Ahmad Soomro, Ghulam Hussain, Shams-u1-Islam, Manzoor Elahi, Rahat-e-Alam, Muhammad Jalil, Sadiq Ali, Nazeer Khan, Humayun Irfan, Malik Asghar Ali, Abdul Ghafoor, Iftikhar Ahmad Jogezai, Abdul Qayyum Khan, Muhammad Yasin Rashid, Mamlook Hussain, Faryad Ali and Sahibzada, (Appellants in person).

Abid Hussain Minto, Hafiz S.A. Rehman, Khawaja Muhammad Farooq, Senior Advocates Supreme Court for Employers/Department.

Ghorsi Muhammad Din Ch., Muhammad Jaffer Hashmi, Mian Qamar-uz-Zaman, Raja Muhammad Ibrahim Satti, Saleem Baig, Sh. Anwar-ul-Haq, Jehanzeb Khan Bharwana, Riaz Muhammad Qureshi, Hashmat Ali Habib, Mian Abdullah, Javed Altaf, Manzoor Ahmad Rana, Muhammad Bashir Kayani and Syed Asif Shah, Advocates Supreme Court for Employers/Department..

M.S. Khattak, Raja Abdul Ghafoor and M.A. Zaidi, Advocateson-Record for Employers/Department.

Naveed Ahmad, Asstt. Admn. Officer (Pakistan Steel Mill) Farid Ullah Khan, AVP. HBL

Muhammad Ashraf Mirza, ALA. (PTCL)

Irfan Ahmad Khan, Manager (Legal SSGC)

Dates of Hearing: 12/13th September, 2007.